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    "source_key": "britannica_1911",
    "source_title": "Encyclopaedia Britannica (1911)",
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    "chunk_id": "1911:international law:887bd28fe098",
    "title": "INTERNATIONAL LAW",
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    "verified_text": "international law, the general term for the law governing the relations and intercourse of states with one another. the parties in its application are states (see state) and not nations, so that the word \"international\" does not accurately limit the scope of the subject. nor do authors always confine themselves to its proper limitation. thus the rules relating to nationality and naturalization, extradition, patents, trade marks, &c., which affect states on the one side and foreign persons on the other, are generally included among the subject-matter of international law. there is a special branch of international law known as private international law (see international law, private) which deals exclusively with the relations of persons belonging to different states, in which states as such are not parties. the term \"international\" was first used by bentham. his explanation of the new term was as follows:-- \"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 \"law of nations,\" an appellation so uncharacteristic that, were it not for the force of custom, it would seem rather to refer to internal jurisprudence. the chancellor d'aguesseau has already made, i find, a similar remark; he says that what is commonly called _droit des gens_ ought rather to be termed _droit entre les gens_. there remain then the mutual transactions between sovereigns as such, for the subject of that branch of jurisprudence which may be properly and exclusively termed international.\"[1] there has been much controversy as to the aptness of the use of the word \"law\" in this connexion. \"international law,\" said the 3rd marquess of salisbury in a speech on the establishment of a court of international arbitration, \"has no existence in the sense in which the term 'law' is usually understood. it depends generally upon the prejudices of writers of text-books. it can be enforced by no tribunal, and therefore to apply to it the phrase 'law' is to some extent misleading.\"[2] this has been more or less the view not only of most british statesmen but also of many practical english jurists. it found one of its most emphatic exponents in lord chief-justice coleridge. \"strictly speaking,\" he observed in his judgment on the franconia case,[3] \"international law is an inexact expression, and it is apt to mislead, if its inexactness is not kept in mind. law implies a lawgiver and a tribunal capable of enforcing it and coercing its transgressors, but there is no common lawgiver to sovereign states, and no tribunal has the power to bind them by decrees or coerce them if they transgress. the law of nations is that collection of usages which civilized states have agreed to observe in their dealings with one another. what these usages are, whether a particular one has or has not been agreed to, must be matter of evidence. treaties and acts of states are but evidence of the agreement of nations, and do not, in england at least, _per se_ bind the tribunals. neither certainly does a consensus of jurists, but it is evidence of the agreement of nations on international points, and on such points, when they arise, the english courts give effect as part of english law to such agreement.\" in opposition to this view may be cited the more recent one expressed by lord russell of killowen, who challenged lord coleridge's view as \"based on too narrow a definition of law, a definition which relies too much on force as the governing idea.\" \"if,\" he added, \"the development of law is historically considered it will be found to exclude that body of customary law which in early stages of society precedes law. as government becomes more frankly democratic, laws bear less and less the character of commands imposed by a coercive authority, and acquire more and more the character of customary law founded on consent.... i claim that the aggregate of the rules to which nations have agreed to conform in their conduct towards one another are properly to be designated international law.\"[4] this recalls blackstone's definition: \"the law of nations is a system of rules, deducible by natural reason, and established by universal consent among the civilized inhabitants of the world, in order to decide all disputes, to regulate all ceremonies and civilities, and to ensure the observance of justice and good faith in that intercourse which must frequently occur between two or more independent states, and the individuals belonging to each.\"[5] the current english narrower view owes its origin chiefly to the influence of john austin, and the current broader one to that of sir henry maine.[6] the increasing popularity of references to international arbitration (see arbitration, international), the adoption of a large number of special treaties making such references compulsory in certain cases, the establishment of and increasing recourse to the court for the decision of difficulties between states created by the hague \"convention for the pacific settlement of disputes between states\" of 1899 (see peace), the adoption of fixed rules of law in the international conventions in 1899, 1907 and 1909 dealing with many of the most controversial questions of international usage, have so transformed the subject that if, as lord coleridge said, law implies a lawgiver and a tribunal capable of enforcing it, these conditions are now at any rate partly fulfilled. we shall see below to what extent it may be necessary to regard power of enforcement against transgressors as requisite to give international law the character of law properly so-called. _sanctions._--the subject of the enforcement of international law, or its \"sanctions,\" has given rise to much controversy. the word \"sanction\" is derived from the lat. _sanctio_, which in turn is derived from _sancire_, to consecrate. in its original sense _sanctio_ means consecration. from this followed the sense of religious obligation. thus _sancire legem_ is used by roman writers as meaning that observance was made obligatory, but without reference to the idea of there being a remedy or penalty for non-observance. with the development of an organized judicial system the religious or moral obligation was displaced by the growth of remedial procedure. cicero observes of some legal restrictions, _hoc non sancitur lege civili_ (this is not consecrated by the civil law, i.e. with penalties). a collateral sense of the word grew up which meant ratification, as where cicero speaks of _sancire acta caesaris_ or of _sancire foedus_. bentham, who worked out the theory of legal sanctions as applied to modern law, describes them as equivalent to pleasures and pains derived from four different sources. these are physical, political, moral and religious. the first three belong to experience in the present life, the fourth to that in the present life or hereafter.[7] austin's analysis of this vague subdivision led him to a more precise determination of the relationship of sanctions to law, viz. that a law properly so-called is a command and its sanction is the power to enforce obedience to it. stated briefly, any other kind of law according to austin is not positive law but merely called so by analogy. applying this test to international law he concludes that the law obtaining between nations is not positive law; for every positive law is set by a given sovereign to a person or persons in a state of subjection to its author. the law obtaining between nations is only law set by general opinion, with duties which are only enforced by moral sanction; by fear on the part of nations, or by fear on the part of a sovereign, of provoking general hostility, and incurring its probable evils, in case they should violate maxims generally respected.[8] sir h. maine's somewhat indirect answer to austin may now be taken as the view held at least by british theoretical writers. \"austin,\" he said, \"has shown, though not without some straining of language, that the sanction is found everywhere, in positive law, civil and criminal. this is, in fact, the great feat which he performed, but some of his disciples seem to me to draw the inference from his language that men always obey rules from fear of punishment. as a matter of fact this is quite untrue, for the largest number of rules which men obey are obeyed unconsciously, from a mere habit of mind. men do sometimes obey rules for fear of the punishment which will be inflicted if they are violated, but, compared with the mass of men in each community, this class is but small; probably it is substantially confined to what are called the criminal classes, and for one man who refrains from stealing or murdering because he fears the penalty there must be hundreds of thousands who refrain without a thought on the subject.\"[9] the view, however, that a law is not devoid of binding character because there is no authority to enforce its observance hardly requires justification at the present day. the fact that any well-established international usage is observed, and that states invariably endeavour to answer any reproach of departing from such usage by explanations showing that the incriminated act is justified by recognized rules of international law, is evidence of its binding character. as the late professor rivier, one of the leading authorities on roman law, as well as an international jurist of eminence, has expressed it: \"the law of nations is positive law because states wish it to be so. they recognize its compulsory character and proclaim it. as they are their own legislators and make their common laws by express or tacit consent, they attest explicitly and implicitly their conviction that its principles are binding upon them, as judicial principles, as law. innumerable public acts, affirmations, declarations and conventions are there to prove it. on the other hand, never in any published official act of the present age, verbal or written, has a state dared to declare that it did not consider itself bound by the law of nations and its principles.\"[10] states, as professor rivier says, have again and again solemnly declared their determination to abide by the principles of international law. witness the declaration of aix-la-chapelle of november 15, 1818, in which the representatives of five powers, austria, france, great britain, russia and prussia, solemnly stated that \"the sovereigns in forming this august union have regarded as its fundamental basis their unchangeable resolution never to depart, either amongst themselves or in their relations with other states, from the strictest observance of the principles of the law of nations, principles which, in their application to a permanent state of peace, can alone effectively guarantee the independence of each government and the stability of the general association.\" in the negotiations for the treaty of london concerning the black sea (march 13, 1871), at which seven powers were represented, austria-hungary, france, germany, great britain, italy, russia and turkey, a resolution on the sanctity of treaties was annexed to the first protocol, stating that the plenipotentiaries recognize that it is an essential principle of the law of nations that \"no power can liberate itself from the engagements of a treaty, nor modify the stipulations thereof, unless with the consent of the contracting powers by means of an amicable arrangement.\" even in 1908, when austria-hungary proceeded to the annexation of bosnia-herzegovina without obtaining the prior assent of the high contracting powers, who under the treaty of berlin of 1878 had granted her temporary occupation of the annexed provinces, the protests of the powers concerned were answered by austria-hungary declaring that she had done nothing contrary to the law of nations or affecting the sanctity of treaties, because the powers had given their tacit consent to the practical transformation of her temporary into a permanent occupation. the public opinion of the civilized world, in fact, plays in an ever-increasing degree the part of a sanctioning authority. with the growth of international intercourse and international interdependence the danger of isolation or of discredit or even of \"boycotting\" becomes a matter of increasing importance in the conduct of states. the national press and periodical literature, with exceptions no doubt, are among the chief factors in the development of this public opinion, but it is by no means dependent upon them. personal intercourse among citizens of the same country, and between statesmen, politicians and citizens of different countries has a still greater effect in the creation of the mental attitude of nations towards each other. this exposes any departure from recognized usage or any disregard for international obligations to such reprobation throughout the whole world, that, far from taking advantage of the absence of any coercive method of enforcing obedience to the principles of international law, states compete with each other in asserting their strict fidelity to such principles. and now successive diplomatic conferences have codified many of the chief branches of international usage, thus diminishing the possible cases in which states can take advantage of the uncertainty of the law and, by quibbling over its interpretation, escape from its obligations. _sources and foundations._--it is usual, following wheaton's classification,[11] to enumerate the sources of international law in the following groups: text-writers of authority as witnesses of usage; treaties of peace, alliance and commerce; ordinances of particular states, prescribing rules for the conduct of their commissioned cruisers and prize tribunals; adjudications of international tribunals; written opinions of official jurists given confidentially to their own government; history of wars, negotiations, treaties and other transactions relating to the public intercourse of nations. it is in these different classes of opinions and precedents that writers have been in the habit of searching for those arguments and analogies on which have been built up the system and principles called international law. wheaton, it is seen, regarded text-writers as witnesses of the usage of nations. he explains his meaning as follows: \"without wishing to exaggerate the importance of these writers, or to substitute in any case their authority for the principles of reason, it may be affirmed that they are generally impartial in their judgment. they are witnesses of the sentiments and usages of civilized nations, and the weight of their testimony increases every time that their authority is invoked by statesmen, and every year that passes without the rules laid down in their works being impugned by the avowal of contrary principles.\" this distinguished writer's quasi-explanation of the sources of international law is extremely vague. he masses together cause and effect, private and public opinions, usage and exceptions. professor oppenheim has endeavoured to give a more scientific explanation of the growth and development of international law, and objects to calling sources of international law what are mere factors influencing its growth:-- \"... custom and treaties,\" he observes, \"are the two exclusive sources of the law of nations. when writers on international law frequently enumerate other sources besides custom and treaties they confound the term 'source' with that of 'cause'[12] by calling sources of international law such factors as influence the gradual growth of new rules of international law without, however, being the historical facts out of which these rules receive their legal force. important factors of this kind are: opinions of famous writers on international law, decisions of prize courts, arbitral awards, instructions issued by the different states for the guidance of their diplomatic and other organs, state papers concerning foreign politics, certain municipal laws, decisions of municipal courts. all these and other factors may influence the growth of international law either by creating usages which gradually turn into custom, or by inducing the members of the family of nations to conclude such treaties as stipulate legal rules for future international conduct. \"a factor of the special kind which also influences the growth of international law is the so-called comity (_comitas gentium, convenance et courtoisie internationale, staatengunst_). in their intercourse with one another states do observe not only legally binding rules and such rules as have the character of usages, but also rules of politeness, convenience and goodwill. such rules of international conduct are no rules of law, but of comity. the comity of nations is certainly not a source of international law, as it is distinctly the contrast to the law of nations. but there can be no doubt that many a rule which formerly was a rule of international comity only is nowadays a rule of international law. and it is certainly to be expected that this development will go on in future also, and that thereby many a rule of present international comity will in future become one of international law.\"[13] precedents. italian influence. we prefer to regard international law as deriving the rules composing it from practically the same sources as domestic law, and to attribute to text-writers more or less the same value in its development as in that of the private law of nations. the same primary rules of conduct are appealed to between states as between individuals, and precedents play exactly the same part wherever human actions are concerned. in both cases what has been done before commends itself when the responsibility of taking steps pledging the future is concerned. statesmen on whom great responsibility impends, on whom the conduct of momentous negotiations has devolved, and who will have to render an account of their work to the sovereign or nation they represent, preserve an argument in their own favour in departing as little as possible from any course taken in previous similar circumstances. precedents, moreover, are arguments for acceptance by their adversaries or counter-negotiators. in fact, in diplomacy even more than in matters of domestic government precedents play a dominant part in the growth of usage. these precedents are often in themselves originally local usages, such as grew up in the intercourse of the italian communities. italy, in fact, served as a laboratory for early diplomatists and writers. it was in the intercourse of these active and ambitious states that grew up the very notion of a foreign diplomacy and the necessity of rules of conduct in this miniature europe, with its perpetual antagonisms and jealousies, its balance of power, its idea of a state distinct from a nation and of a community of states elbowing each other in their daily contact. it was there that grew up the institution of passports, the distinction between armed forces and civilians, international comity, and in fact the very notion that states have an interest in the observance of law and order among them. in the same way the active commercial intercourse in the mediterranean led, in the common interest, to the development of rules of the sea in time of peace, and later to others in time of war. thirty years' war. in the north of europe, again, out of the active commercial intercourse among the baltic and north sea communities grew rules of the sea in the same common interest. it was the thirty years' war, with its revolting cruelty, which brought out the contrast between the more humane practice of war as an art in italy and the mere bludgeonry which prevailed in the brutal struggle which disgraced the first half of the 17th century. the brutality of the struggle turned thinkers' attention to the need of formulating rules for the protection in time of war of non-combatants and the innocent subjects of absolute sovereigns, the treatment of the sick and wounded, the prohibition of wanton pillage and the other horrors which shocked the awakening conscience of northern europe. it was the starting-point of the age of text-books. grotius. pufendorf. the first effective work, the one which was the first to influence sovereigns and statesmen, was grotius's _de jure belli ac pacis_ (paris, 1625), which practically exhausted the theoretical arguments in favour of the new subject. nobody has in fact since brought to light any new conception of the foundations of international law. an exhaustive and masterly treatise having been published, no further subsequent treatise was necessary to show what all men were beginning to feel. he sublimated the feelings of his age, and having arrived at the pure substance, the work of proving the need of his subject was disposed of for all time. pufendorf (1632-1697), who, in the sequence of effective text-writers, succeeded grotius, endeavoured to base international law on an ethical basis accepted by all peoples without necessity for a common creed or standard of morals, but it is doubtful, whatever may have been the extent to which he stimulated the study of jurisprudence, whether he did much in advancing the practical development of the law of nations. his book _de jure naturae et gentium_ (1672), as its name indicates, based international law on what he called the law of nature, a subject which has much exercised the minds of jurists searching for an ethical basis for existing law. leibnitz. the scientific mind of leibnitz (1646-1716) revolted against this theoretical and doctrinaire tendency of pufendorf and other writers, who were following with feeble tread in the giant footsteps of grotius. he saw that the practice of nations was taking a course dictated by the current moral standards of civilized society, and that the philosophizing of the text-book writers was leading them away from that actual practice which they should use as data for their conclusions. natural science, moreover, had taught him the risk of theorizing on imperfect data, and while writing a history of brunswick it occurred to him that treaties and diplomatic documents generally were the substances and tests of the publicist's laboratory. his _codex juris gentium diplomaticus_ (1693-1700) gave a more precise direction to speculations on the subject. bynkershoek. the next great writer of authority united all the qualities of a practical lawyer and jurist. this was bynkershoek (1673-1743). he was the first writer on international law who dealt with public maritime law as a matter demanding special treatment and involving a set of principles not called into action in territorial warfare. a magistrate administering the law in a great commercial country, whose interests were on or across the high seas rather than within the narrow european limits of holland, bynkershoek, like leibnitz, searched for his data in the actual practice of nations in their intercourse with one another. he applied his clear legally trained mind to deriving principles from practice instead of endeavouring to build up a practice on abstract principles. it was he who first generalized the different isolated usages which had grown up at different spots in northern europe in the interest of maritime defence, and evolved from practice the principle that dominion seawards was limited to the extent to which it was possible to enforce it (cannon-shot range), a principle which not only created the legal institution of territorial waters, but has since been imported into other branches of international law, and has indirectly influenced the suppression of fictitious blockades and more recently of fictitious occupations of territory. c. de wolff. vattel. a contemporary of bynkershoek was christian de wolff (1679-1754), a philosopher, mathematician, theologian, lawyer and disciple of leibnitz. wolff's great work on the _institutions of the law of nature and nations_ is a learned and accurate treatise drawn from all the well-known sources of knowledge, and, just as grotius based his demonstrations on the then imperfect knowledge of public events of his time, wolff based his on the more accurate sources of information which had grown up under the influence of leibnitz, and created a connected system out of the scattered fragments available. but his book was written in latin at a period when scholarship had declined, and its influence was only felt after vattel (1714-1767) wrote his _droit des gens, ou principes de la loi naturelle appliquees a la conduite et aux affaires des nations et des souverains_ (1758). his book had all the charm, although vattel was a neufchatelois, of the french writers of his time, and he it was who popularized the study of international law. his book was based chiefly on the work of wolff, but in it he gave what was best amongst his predecessors without attempting to add anything original of his own. it became the handbook of statesmen and jurists, and has never ceased to be quoted by them down to the present day. but the opinions of jurists in international law can have little more than the value of criticism and co-ordination. they have seldom served to make law, though they have the weight of all statements made by those who have made a special study of any branch of law, as to what they had gathered to be the existing practice at the time when they wrote, or as to the trend which they showed that practice might be taking. great lawyers and writers like those we have mentioned, and such as lord mansfield, sir william scott, chief-justice marshall and others, have done the work of classifying facts, deducing conclusions from them and connecting rules with psychological and ethical motives, and have thus sent a current of higher intelligence through the subject which has raised it to its present methodical form. still international law remained a wide field for controversy. authors were agreed on general principles, but when these general principles were applied in practice, the shortcomings of unwritten usage often caused as much difficulty as that which the appeal to principles was intended to overcome. hague and london conferences. what may be called the first enactment of rules of international law was the declaration of paris of 1856, but the great work of codification, or rather of reducing into writing the rules which had been floating as an unwritten law in the conscience of europe, was undertaken by the hague conferences, which may be said to be and to have created an entirely new factor in the domain of international law. two of the conventions adopted in 1899 completed work which had already been commenced long before, viz. those on the usages of war and on the adaptation of the geneva convention to naval war. the third established methods for the pacific settlement of international difficulties, including the formation of the hague court of arbitration. recourse to the latter was purely optional, but the other two conventions have been absorbed into the national law of the ratifying countries, and thus have also the domestic sanction states give to their own laws. the work of the conference of 1907 was of a much wider and more exhaustive character than that of 1899. it comprised, besides revised conventions on the matters dealt with in 1899, new conventions on the following subjects: opening of hostilities; position in naval war of enemy's merchant ships at beginning of hostilities; conversion of merchant vessels into warships; rights and duties of neutral states in naval war; the laying of automatic submarine contact mines; the bombardment of undefended places by naval forces; treatment of fishing vessels, postal correspondence and capture generally in maritime war; and recovery by force of contract debts. it also adopted a convention for the creation of an international prize court of appeal, which led to the calling of a fresh conference on prize law. this conference sat in london from december 4, 1908, to february 26, 1909, and was confined to representatives of the following countries: great britain, france, germany, united states of america, italy, austria-hungary, russia, japan, holland and spain. it adopted a series of rules on naval warfare relating to blockade in time of war; contraband of war; unneutral service; destruction of neutral prizes; transfer to neutral flag; enemy character; convoy; and resistance to search and compensation. the revolution effected in the relations of states by the hague and london conferences, however, is not confined to the reduction into writing of more or less vague usages nor to the elaboration of details which no usage can possibly determine. until a machinery was provided for the reform of the law it was futile to speculate on the advantages or disadvantages of any rule admitted by the majority of civilized nations. the territorial waters 3 m. limit, for instance, had its origin in the distance seawards of cannon-range in a past period. its almost universal recognition only came long after the range of coast-guns had far exceeded this distance. this superannuated rule has now no legal basis at all except the so-called \"common consent of nations,\" a boon no doubt which outweighs any consideration of absolute fitness still unrecognized, but of which the learned barbeyrac truly said,[14] \"ce commun consentement des peuples que l'on suppose avoir force de loi est une chose qu'on ne prouvera jamais.\" the institution of the hague conferences has now provided a method of obtaining the consent of nations, not only to existing rules, but to their reform and to the introduction of new rules. it is now an understanding among the states of the world, that these conferences shall be held periodically. it is, of course, possible for one great state to hold aloof and thus wreck the chances of universal agreement, but even then we have the power of the majority as against that of the minority. a case actually arose in a recent war between non-signatories of the declaration of paris of 1856. neither the united states nor spain was a party to that declaration, yet neither ventured to disregard it. the chief source of international law will, therefore, in all probability for the future be that \"parliament of mankind,\" the hague conferences. the hague court and its adjunct in time of war, the proposed international prize court of appeal, will form the judicature applying and construing the enactments of the conferences acting as a sort of international legislature. standard of right conduct. _fundamental principles._--underlying the details of both the new international legislature and the new international judicature are certain principles which may some day have to be officially defined. these principles have necessarily fluctuated with the standard of morals of each period. with the contemporary development of the public conscience, they are undergoing changes and a betterment which it is not desirable to check by yet nailing them up as immutable articles of faith. till quite recently it was usual to speak of the common standard of right conduct prevailing throughout the christian world, a standard to which responsible statesmen tried to adjust their direction of the affairs of state. the admission of japan into the councils of the great powers has introduced a non-christian element whose standard of conduct was not identical with nor based upon christian morals. turkey, though admitted in 1856 to european councils, remained rather the occasion of their deliberations than a deliberating party. her new position as a constitutional state, with a code of morals at any rate in some essentials distinct from that of christian peoples, will add a further new non-christian element into the moral foundations of international conduct. the influence of western europe, however, in both japan and turkey, has hitherto in all external development been paramount. japan, after examining all the existing systems, has even adopted the best she found in western morals, and in her schools inculcates christian ethics as a subject _per se_ without reference to divine revelation or authority. turkey too has the advantage of possessing a code of morals which produces so high a standard of right conduct in private life that very little in the way of moral lessons will have to be learned by the ottomans from western civilization. as regards practice, it is unreasonable to expect that the high estimate of the moral standard of west european civilization, which is cherished by those who profess its principles, should be accepted by other peoples with unqualified assent. are not the nations of western europe still vaguely influenced by the instincts of their conquering ancestors, and by the traditions of-- \"... the good old rule, ... the simple plan, that they should take who have the power and they should keep who can\"? there is nothing essentially different between many recent wars and military enterprises undertaken by western nations against heathen peoples, and wars and conquering enterprises undertaken by the northmen of a thousand years ago. in his _northern antiquities_ mallet[15] describes the primitive feeling of the northmen in the following passages:-- \"the rules of justice, far from checking their prejudices, had been themselves warped and adapted to their bias. it is no exaggeration to say that all the teutonic nations entertained opinions on this subject quite opposite to the theory of our times. they looked upon war as a real act of justice, and esteemed it an incontestable title over the weak, a visible mark that god had intended to subject them to the strong. they had no doubt but the intentions of this divinity had been to establish the same dependence among men which there is among animals, and setting out from the principle of the inequality of men, as our modern civilians do, from that of their equality, they inferred thence that the weak had no right to what they could not defend. this maxim which formed the basis of the law of nations among the ancient inhabitants of europe being dictated by their most darling passion, we cannot wonder that they should so steadily act up to it in practice. and, which after all is worst, to act and think as they did, or, like the moderns, with better principles, to act as ill? as to the ancient nations, we attribute nothing to them here but what is justified to them by a thousand facts. they adopted the above maxim in all its rigour and gave the name of divine judgment not only to the judiciary combat, but to conflicts and battles of all sorts: victory being in their opinion the only certain mark by which providence enables us to distinguish those which it has appointed to command others.\" what is a civilized state? the very notion of the \"right of conquest,\" and that the victorious are entitled to an indemnity without reference to any question of right and wrong or of justice and injustice, shows that there are principles in actual practice which lie outside and have no analogy in the principles of private law. in the partition of africa native states have been treated as non-existent except as local bodies. they have been annexed to european states without reference to their will or consent. treaties have indeed been made with them, but they have rather been regarded as evidence of prior occupation than as involving any question of native right. the test in the distinction between civilized and uncivilized states which is regarded as warranting exclusion from enjoyment of the right to consideration as independent states, and admission to the community of the civilized world, is in practice the possession of a regular government sufficient to ensure to europeans who settle among them safety of life and property. every country, in principle, possessing such a government has prima facie the rank of a state and is entitled to treatment as a civilized community. treaties made with it for the purpose of extra-territorial jurisdiction are intended merely to take into account a difference of judicial institutions but are not supposed to detract otherwise from the possession of such equality and independence. this principle has no analogy in private morals, and has been, slight as it is, more honoured in the breach than the observance. if indifference to native right has provoked reaction, it has been on the part rather of philanthropists than of statesmen. their movement for the protection of african aborigines has, however, resulted in at least one great international charter for the prevention of the further degradation of african aborigines, viz. the general act of brussels of 1885. a vigorous outcry has also been raised against the methods of the government of the congo state. but the agitation ought not to be confined to this part of central africa. other governments are also in fault. in fact, the contact of the european with central africa has, throughout, with few exceptions, been one of barbarous practice quite inconsistent with the principles which christian missionaries have been sent to teach the african native. in the case of european enterprise in asia, the \"good old rule\" has had still less justification. the action taken for the repression of the boxer movement in china, like previous european incursions, had no essential characteristic distinguishing it from the expeditions of the northmen described by mallet in the above-quoted passage. the japanese took part in the \"boxer\" expedition, and the example of respect for native right and of orderly self-restraint they set has been universally acknowledged. but the lesson is one of greater significance than one of comparative ethics. the rise of the power of japan and her obvious determination to constitute herself the champion of the races of eastern asia has widened the scope of international law, and we may now regard china as henceforth under the protection of the same principles as european states. the three chief principles of interstate intercourse, those, in fact, on which international law is based are:-- 1. recognition of each other's existence and integrity as states. 2. recognition of each other's independence. 3. recognition of equality, one with another, of all independent states. chief principles. as regards the first ol these principles see state. from the principle of independence it follows that every state has a right to change its form of government and to enjoy the free exercise ol its internal energies. this is subject only to the limitation that in the exercise of this right other states or their subjects shall not be molested or otherwise suffer. the equality of all independent states entitles them to respect by other states of all the forms of ceremonial and to the same treatment by others, where their interests are identical, whether they are strong or weak. this principle has often been violated, but it is, nevertheless, acknowledged wherever possible, as in diplomatic conferences relating to all matters of an economic, hygienic, industrial or social character. even at the conference of algeciras, though the powers immediately concerned from a political point of view were only great britain, france, germany and spain, the following were also represented as having economic interests in morocco, austria-hungary, italy, russia, belgium, holland, portugal and sweden. high sea. ships on the high sea being regarded as detached portions of the national territory, there is also the derived principle of the freedom of the high sea, of the independence and equality upon it of the ships of all nations, subject only to due respect being paid to the independence and equality of all others and to such conventional restrictions as states may impose upon themselves (see territorial waters). this principle is re-enunciated in the preamble to the convention of 1907 on the laying of automatic submarine contact mines (see peace conferences). the right to arbitration. the hague conventions are based on these principles, to which there is a tendency to add another, viz. the right to arbitration in certain cases. this principle is set out more or less tentatively, it is true, but it is being completed by separate treaties of compulsory arbitration in connexion with the cases referred to. it is enunciated in the following article of the convention of 1907 for the pacific settlement of international disputes:-- \"in questions of a legal nature, and especially in the interpretation or application of international conventions, arbitration is recognized by the contracting powers as the most effective, and, at the same time, the most equitable means of arranging disputes which diplomacy has failed to settle. consequently, it is desirable that, in disputes regarding the above-mentioned questions, the contracting powers should, if need be, have recourse to arbitration, in so far as circumstances permit\" (art. 28). the principle of arbitration has also been adopted in reference to the recovery of contract debts under the following article of the \"convention respecting the limitation of the employment of force for the recovery of contract debts\":-- \"the contracting powers agree not to have recourse to armed force for the recovery of contract debts claimed from the government of one country by the government of another country as being due to its subjects or citizens. this undertaking is, however, not applicable when the debtor state refuses or neglects to reply to an offer of arbitration, or, after accepting the offer, renders the settlement of the _compromis_ impossible, or, after the arbitration, fails to comply with the award\" (art. 1). the codification of international law itself, begun at the hague and london conferences, is an admission of the binding character of the primary principles set out above. restriction of effect of fictions. one of the chief tendencies of contemporary reform is also to restrict the effect of fictions and reduce rights to the limits of their practical application. between two alternatives, the one to assert rights which cannot possibly be maintained by force such as claims to dominion over portions of the high sea (see high sea, territorial waters), \"paper blockades\" (see blockade) and fictitious occupations of territory (see occupation), and the other to require actual physical assertion, a medium course is growing up, viz. that of recognizing potential assertion, that is assertion limited to physical possibilities.[16] with the aid of the institute ol international law, the international law association and other reforming agencies (see peace), expert opinion in these matters is becoming homogeneous throughout the civilized world, and the ground is being prepared for a clearer understanding of these fundamental principles by the statesmen and state officials who have to apply them in practice. bibliography.--the following are works on international law, diplomacy and treaty relations, from the beginning of the 19th century until 1910. many of the older authors have been omitted to permit the inclusion of more recent writers. alcorta, _tratado de derecho internacional_ (buenos aires, 1878); d. anzilotti, _teoria generale della responsabilita dello stato nel diritto internazionale_ (florence, 1902); arendt, _le droit public et la neutralite de la belgique_ (brussels, 1845); nagao ariga, _la guerre russo-japonaise, au point de vue continental et le droit international_ (paris, 1908), _la guerre sino-japonaise au point de vue du droit international_ (paris, 1896); sir sherston baker, _first steps in international law_ (london, 1899); barboux, _jurisprudence du conseil des prises pendant la guerre franco-allemande_ (1872); sir t. barclay, _problems of international practice and diplomacy_ (london, 1907); t. baty, _international law_ (london, 1909); bello, _principios de derecho internacional_, 2nd ed. by silva (madrid, 1884); norman bentwich, _the law of private property in war with a chapter on conquest_ (london, 1907); bergbohm, _staats-vertrage und-gesetze als quellen des volkerrechts_ (leipzig, 1877); t. m. bernard, _four lectures on subjects connected with diplomacy_ (london, 1868); bluntschli, _das moderne volkerrecht der civilisirten staaten als rechtsbuch dargestellt_ (nordlingen, 1868), trans. into french by lardy (_le droit international codifie_) (paris, 2nd ed., 1874), _die bedeutung und die fortschritte des modernen volkerrechts_ (2nd ed., berlin, 1873); de boeck, _le droit de la propriete ennemie privee sous pavillon ennemi_ (paris, 1882); henri bonfils, _manuel de droit international public_ (1894, 4th ed., by fauchille, 1904); percy bordwell, _the law of war between belligerents--a history and commentary_ (chicago, 1908); bornemann, _forelaesninger over den positive folkeret_ (copenhagen, 1866); brusa, _del modierno diritto internazionale pubblico_ (florence, 1876); de burgh, _elements of maritime international law_ (london, 1868); aug. von bulmerincq, _praxis, theorie und codification des volkerrechts_ (leipzig, 1874), _das volkerrecht_ (1887); montagu burrows, _history of the foreign policy of great britain_ (london, 1897); charles henry butler, _the treaty-making power of the united states_ (2 vols., new york, 1902); carlos calvo, _le droit international_ (5th ed., 6 vols., paris, 1896); cauchy, _le droit maritime international considere dans ses origines et ses rapports avec les progres de la civilisation_ (2 vols., paris, 1862), _du respect de la propriete privee dans la guerre maritime_ (paris, 1866); carnazza-amari, _trattato di diritto internazionale de pace_ (2 vols., 1867-1875); pitt cobbett, _cases and opinions on international law and various points of english law connected therewith_ (london, 1st ed. 1885, 2nd ed. 1892, 3rd ed. 1909) (part i, \"peace\"); miguel cruchaga, _nociones de derecho internacional_ (1899, 2nd ed. 1902); cogordan, _la nationalite au point de vue des rapports internationaux_ (paris, 1879); de courcy, _reforme internationale du droit maritime_ (paris, 1863); r. t. crane, _state in constitutional and international law_ (1907); creasy, _first platform of international law_ (london, 1876); g. b. davis, _outlines of international law, with an account of its origin and sources, and of its historical development_ (new york, 1887); _elements of international law, with an account of its origin, sources and historical development_ (new and revised edition, new york and london, 1900); de clercq, _recueil des traites, conventions et actes diplomatiques conclus par la france avec les puissances etrangeres, publies sous les auspices du min. des aff. etrangeres_ (paris, 21 vols.); descamps, _l'evolution de la neutralite en droit international_ (brussels, 1898); f. despagnet, _cours de droit international public_ (2nd ed., paris, 1899), _la diplomatie de la troisieme republique et le droit des gens_ (paris, 1904); professor giulio diena, _principi di diritto internazionale_ (naples, 1908); dufraisse, _histoire du droit de guerre et de paix_ (paris, 1867); jacques dumas, _les sanctions de l'arbitrage international_ (paris, 1905); e. duplessix, _la loi des nations, projet de code de droit international public_ (paris, 1906); _l'organisation internationale_ (paris, 1909); charles dupuis, _les tarifs douaniers et les traites de commerce_ (paris, 1895); _le principe d'equilibre et le concert europeen de la paix de westphalie a l'acte d'algesiras_ (paris, 1909); eden, _law of nature and of nations, policy of europe_ (london, 1823); ed. engelhardt. _du regime conventionnel des fleuves internationaux_ (paris, 1879); paul errera, _das staatsrecht des konigsreichs belgien_ (tubingen, 1909); t. h. s. escott, _the story of british diplomacy; its makers and movements_ (london, 1908); fauchille, _la diplomatie francaise et la ligue des neutres de 1780_ (1776-1783) (paris, 1893); _du blocus maritime_ (paris, 1882); ferguson, _a manual of international law_ (2 vols., london, 1884); david dudley field, _outlines of an international code_ (new york and london, 2nd ed., 1876); fiore, _trattado di diritto internazionale pubblico_ (3rd ed., turin, 1888), _nouveau droit international public_ (3 vols., paris, 1885); _le droit international codifie et sa sanction juridique--traduit de l'italien par a. chretien_ (paris, 1889); funck-brentano et sorel, _precis du droit des gens_ (paris, 1877, new ed. 1894); fusinato, _il principio della scuola italiana nel diritto internazional pubblico_ (macerata, 1884); francois gairal, _le protectorat international_ (paris, 1896); e. m. gallaudet, _international law_ (new york, 1886); guillaume de garden, _histoire generale des traites de paix, et autres transactions principales, entre toutes les puissances de l'europe depuis la paix de westphalie_ (14 vols., paris, 1848-1859); gareis, _institutionen des volkerrechts_ (1888, 2nd ed., 1901); l. gessner, _zur reform des kriegseerechts_ (berlin, 1875), _le droit des neutres sur mer_ (2nd ed., berlin, 1876), guelle, _droit international. la guerre continentale et les personnes_ (paris, 1879); gueronniere, _le droit public de l'europe moderne_ (paris, 1876); guesalaga, _derecho diplomatico y consular_ (buenos aires, 1900); hagerup, \"la neutralite permanente\" (_revue generale du droit international public_) (paris, 1905); w. e. hall, _a treatise on international law_ (6th ed., edited by j. b. atlay, oxford, 1909); _foreign powers and jurisdiction of the british crown_ (london, 1894); h. w. halleck, _international law_ (philadelphia, 1866, edit. by sir sherston baker, 4th ed., 2 vols., london 1908); a. b. hart, _foundations of american foreign policy_ (new york, 1901); hartmann, _institutionen des praktischen volkerrechts in friedenszeiten_ (1887); l. b. hautefeuille, _quelques questions de droit international maritime a propos de la guerre d'amerique_ (leipzig and paris, 1861); _droits et devoirs des nations neutres_ (3 vols., 3rd ed., paris, 1868); _questions de droit maritime international_ (paris, 1868); _histoire des origines, des progres et des variations du droit maritime international_ (paris, 1858, 2nd ed. 1869); heffter, _das europaische volkerrecht der gegenwart_ (berlin, 1855, trans. into french by bergson, _le droit international de l'europe_, 4th ed., enlarged and annotated by geffcken, berlin and paris, 1883); amos e. hershey, _the international law and diplomacy of the russo-japanese war_ (new york, 1906); hertslet's _commercial treaties_ (24 vols., london, 1840-1907); sir edward hertslet, _map of europe by treaty, showing the territorial changes since the general peace of 1814-1891_ (4 vols., london, 1875-1891); _map of africa by treaty (1778-1895)_ (3 vols., london, 1896), index to british and foreign state papers, vols. 1 to 63 (1879); a. pearce higgins, _the hague peace conferences and other international conferences concerning the laws and usages of war_ (cambridge, 1909); historicus (sir william harcourt), _letters on some questions of international law_ (1863); albert e. hogan, _pacific blockade_; t. e. holland, _the elements of jurisprudence_ (london, 1880, 10th ed., oxford, 1906), _studies in international law_ (oxford, 1898), _the laws of war on land_ (oxford, 1908), _letters to the times upon war and neutrality_ (1881-1909) with some commentary (london, 1909), _british admiralty manual of the law of prize_ (1888); g. f. w. holls, _the peace conference at the hague_ (new york, 1900); holtzendorff, _handbuch des volkerrechts_ (4 vols., hamburg, 1885-1889); j. hosack, _on the rise and growth of the law of nations from the earliest times to the treaty of utrecht_ (london, 1882); huber, _die staaten-succession, volkerrechtliche und staatsrechtliche praxis im 19. jahrhundert_ (leipzig, 1898); international american conference, _plan of arbitration for the settlement of disputes between the american republics, report and recommendations_ (washington, 1890); international american conference, _report and recommendations concerning a uniform code of international law_ (washington, 1890); joseph imbart latour, _la mer territoriale_ (paris, 1889); atherley jones, _commerce in war_ (london, 1907); kaltenborn, _critik des volkerrechts_ (leipzig, 1847), _zur geschichte des natur- und volkerrechts_ (leipzig, 1848); l. kamarowsky, _le tribunal international_ (trans. into french by serge de westman, paris, 1887); wilhelm kaufmann, _the egyptian state debt and its relation to international law_ (london, 1892); _die rechtskraft des internationalen rechtes_ (stuttgart, 1899); kennedy, _influence of christianity on international law_ (cambridge, 1856); james kent, _commentary on international law_ (rev. with notes and cases by j. t. abdy, 2nd ed. rev., london, 1877); kleen, _de la contrebande de guerre_ (paris, 1893), _lois et usages de la neutralite_ (2 vols., paris, 1898-1900), _krigets historia ur folkrattelig synpunkt_ (stockholm, 1906), _kodificerad handbok i krigets lagar till lands och till sjos_ (stockholm, 1909); otto krauske, _die entwickelung der standigen diplomatie vom 15ten jahrhundert bis zu den beschlussen von 1815 und 1818_ (leipzig, 1885); jean lagorgette, _le role de la guerre. etude de la sociologie generale_ (paris, 1905); lammasch, _fortbildung des volkerrechts durch die haager conferenz_ (munich, 1900); alma latifi, _effects of war on property, being studies in international law and policy_ (london, 1909); francois laurent, _histoire du droit des gens et des relations internationales_, continued at vol. iv. under title of _etudes de l'histoire de l'humanite_ (18 vols., brussels, 1861-1880); laveleye, _du respect de la propriete privee en temps de guerre_ (brussels, 1875); t. j. lawrence, _essays on disputed questions of modern international law_ (cambridge, 1884), _the principles of international law_ (london, 1895, 3rd ed. 1900), _handbook of public international law_ (4th ed., london, 1898), _war and neutrality in the far east_ (london, 1904); emile lefevre, _reorganisation du consulat francais a l'etranger_ (paris, 1883); ernest lehr, _la nationalite dans les principaux etats du globe_ (paris, 1909); ernest lemonon, _la seconde conference de la paix_ (paris, 1908, an exhaustive volume in 790 pp.); de leval, _de la protection diplomatique des nationaux a l'etranger_ (brussels, 1907); leone levi, _the law of nature and nations as affected by divine law_ (london, 1855), _international law, with materials for a code of international law_ (london, 1888); liszt, _das volkerrecht_ (1898, 6th ed., 1910); lorimer, _the institutes of the law of nations_ (2 vols., london, 1883); lueder, _der neueste codificationsversuch auf dem gebiete des volkerrechts_ (1874); theo. lyman, _diplomacy of the united states_ (boston, 1828); mackintosh, _discourse on the study of the law of nature and nations_ (2nd ed., london, 1828); sir henry s. maine, _international law_ (london, 1888); terenzio mamiani, _des traites de 1815 et d'un nouveau droit europeen, traduit par leonce lehmann_ (paris, 1862); mancini, _diritto internazionale_ (naples, 1873); manning, _commentaries on the law of nations_ (london, 1839, 2nd ed., by sheldon amos, 1875); mariotti, _du droit des gens en temps de guerre_ (paris, 1883); c. de martens, _causes celebres du droit des gens_ (leipzig, 5 vols., 1858-1861); g. f. de martens, _recueil de traites des puissances et etats de l'europe_ (1761, continued under other editors down to present time), _cours diplomatique, ou tableau des relations exterieures des puissances de l'europe, tant entre qu'avec etats dans les diverses parties du globe_ (berlin, 1801, 3 v. o), _precis du droit des gens modernes de l'europe. augmente des notes de pinheiro-ferreira, avec bibliographie par c. verge_ (2 vols., paris, 1864), _law of nations_, trans. by w. cobbett (london, 1829); f. de martens, _le droit international actuel des peuples civilises_, trans, by leo (_traite de droit international_) (3 vols., paris, 1883); edwin maxey, _international law_ (st louis, 1909); a. merignhac, _traite de droit public international_, vol. i., \"les prolegomenes,\" \"les theories generales,\" vol. ii., \"le droit de la paix\" (paris, 1905-1907), _traite theorique et pratique de l'arbitrage international_ (paris, 1895); _la conference international de la paix_ (paris, 1900); christian meurer, _die haager friedenskonferenz_ (2 vols., 1905-1907); masse, _le droit commercial dans ses rapports avec le droit des gens_ (4 vols., paris, 1844-1848); mohl, _encyclopadie der staatswissenschaften, staatsrecht, volkerrecht und politik_ (3 vols., 1860-1869); john bassett moore, _history and digest of the international arbitrations to which the united states has been a party_ (6 vols., washington, 1898, official), \"asylum in legations and consulates and in vessels\" (_political science quarterly_, vol. vii., nos. 1, 2 and 3, new york, 1902); _digest of international law_, as embodied in diplomatic discussions, treaties and other international agreements, international awards, the decisions of municipal courts and the writings of jurists and especially in documents published and unpublished issued by presidents and secretaries of state of the united states, the opinions of the attorneys-general and the decisions of courts, federal and state (8 vols., washington, government printing office, 1906); morin, _lois relatives a la guerre selon le droit des gens modernes. droit public et droit criminel des pays civilises_ (paris, 1872); negrin, _derecho maritimo internacional_ (madrid, 1873); neumann, _grundriss des heutigen europaischen volkerrechtes_ (vienna, 1856, 3rd ed., 1885, trans, into french by riedmatten, _elements du droit des gens europeens_, paris, 1885); nippold, _fortbildung des verfahrens in volkerrechtlichen streitigkeiten_ (1907); ernest nys, _le droit international_ (4 vols., brussels and paris, 1904-1906); _le droit de la guerre et les precurseurs de grotius_ (paris, 1882); _les theories politiques et le droit international en france jusqu'au xviii^e siecle_ (brussels and paris, 2nd ed., 1899); _etudes de droit international et de droit politique_ (2^e serie, brussels and paris, 1901, _le droit romain, le droit des gens et le college des docteurs en droit civil_ (brussels, 1910); marquis de olivart, _trattato y notas de derecho internacional publico_ (2 vols., 1887, 4th ed., 1903); luigi olivi, _di alcune odierne tendenze del diritto internazionale_ (venice, 1907); onezimo, _discurso sobre la historia del derecho internacional_ (buenos aires, 1872); oppenheim, _system des volkerrechts_ (frankfort, 1845); l. oppenheim, _international law_, vol. i. \"peace,\" vol. ii. \"war and neutrality\" (london, 1905-1906); _international incidents for discussion in conversation classes_ (cambridge, 1909; solutions are not given); _gerechtigkeit und gesetz_ (basel, 1895); ortolan, _regles internationales et diplomatie de la mer_ (4th ed., paris, 1864); paiva, _elementos de direito des gentes_ (coimbra, 1864); pando, _elementos de derecho internacional_ (madrid, 1843, 2nd ed., 1852); pardessus, _us. et coutumes de mer_ (paris, 1847); paroldo, _saggio di codificazione del diritto internazionale_ (turin, 1851); perels, _das internationale seerecht der gegenwart_ (berlin, 1882-1903; transl. arendt, _manuel de droit maritime international_ (paris, 1884); perez-gomar, _curso de derecho de gentes_ (montevideo, 1864-1866); pertille, _elementi di diritto internazionale nel seculo xix._ (naples 1877), _trattato di diritto internazionale_ (1881); sir r. phillimore, _commentaries upon international law_ (4 vols., 3rd ed., london, 1879-1889); coleman phillipson, _effect of war on contracts_ (london, 1909), _studies in international law_ (london, 1908); robert piedelievre, _precis de droit international public_ (2 vols., 1891-1895); pierantoni, _storia del diritto internazionale nel seculo xix._ (naples, 1877), _trattado di diritto internazionale_ (1881-1887); sir f. t. piggott, _nationality, including naturalization and english law on the high seas and beyond the realm_ (2 vols., london, 1907), _exterritoriality, law relating to consular jurisdiction and to residence in oriental countries_ (hongkong and london, 1907); pillet, _recherches sur les droits fondamentaux des etats dans l'ordre des rapports internationaux_ (paris, 1899); pinheiro-ferreira, _droit public interne et externe_ (paris, 1830); sir frederick pollock, \"the monroe doctrine\" (_nineteenth century_, 1902); polson, _principles of the law of nations_ (london, 1848); j. n. pomeroy, _international law in time of peace_, ed. by theo. d. woolsey (new york, 1886): pradier-fodere, _la question de l'alabama et le droit des gens_ (paris, 1872), _traite de droit international public europeen et americain_ (7 vols., paris, 1885-1897); quaritsch, _compendium der europaischen volkerrechts_ (berlin, 1873); carman f. randolph, _the law and policy of annexation with special reference to the philippines together with observations on the status of cuba_ (london, new york and bombay, 1901), \"notes on the foreign policy of the united states suggested by the war with spain\" (new york, 1898, pamphlet), w. f. reddaway, _the monroe doctrine_ (cambridge, 1898); reddie, _inquiries in international law_ (london, 1842); _maritime international law_ (edinburgh, 1844-1845), emil reich, _foundations of modern europe_ (london, 1904); renault, _introduction a l'etude du droit international_ (paris, 1879); riquelme, _elementos de derecho publico internacional_ (madrid, 1849); a. rivier, _principes du droit des gens_ (2 vols., paris, 1896); saalfeld, _grundriss eines systems des europaischen volkerrechts_ (gottingen, 1809); c. salomon, _l'occupation des territoires sans maitre, etude de droit international_ (paris, 1889); sanchez, _elementos de derecho internacional publico_ (madrid, 1866); eugene schuyler, _american diplomacy and furtherance of commerce_ (new york, 1886); james brown scott, _cases on international law_ (boston, 1902), _the hague peace conference of 1899 and 1907_ (2 vols., baltimore, 1909); r. f. seijas, _el derecho internacional hispano-americano, publico y privado_ (6 vols., caracas, 1884); senior, _law of nations, &c._ (london, 1865); sheldon amos, _lectures on international law_ (london, 1874); sierra, _lecciones de derecho maritime internacional_ (mexico, 1854); f. e. smith, _international law_ (london, 1900, \"temple primers\" series), _international law as interpreted during the russo-japanese war_ (in collaboration with n. w. sibley; london, 2nd ed., 1907); stephen, _international law and international relations_ (london, 1884); ellery c. stowell, _consular cases and opinions from the decisions of the english and american courts and the opinions of the attorneys-general_ (washington, d.c., 1909); sakuye takahashi, _cases on international law during the chino-japanese war_ (cambridge, 1900), _international law applied to the russo-japanese war with the decisions of the japanese prize courts_ (london, 1908); h. l. strisower, \"die donaufrage\" _zeitschrift fur das privat. und offentliche recht der gegenwart_ (vienna, 1884); hannis taylor, _treatise on international public law_ (chicago, 1901); tetens, _droits reciproques des puissances belligerantes et des puissances neutres sur mer. principes du droit de guerre en general_ (copenhagen, 1805); tetot, _repertoire des traites de paix, de commerce, d'alliance, &c., conventions et autres actes conclus entre toutes les puissances du globe principalement depuis la paix de westphalie jusqu' a nos jours_ (partie chronologique, 1866, partie alphabetique, 1873, supplement, 1895); alberto torres, _vers la paix. etudes sur l'etablissement de la paix generale et sur l'organisation de l'ordre international_ (rio de janeiro, 1909); heinrich triepel, _volkerrecht und landesrecht_ (leipzig, 1899); sir travers twiss, _the law of nations considered as independent communities_ (2 vols., 2nd ed., london, 1875-1892); von ullmann, _volkerrecht_ (1895; 2nd ed. 1908); verraes, _les lois de la guerre et la neutralite_ (brussels, 1906); t. a. walker, _the science of international law_ (london, 1893), _manual of public international law_ (london, 1895), _history of the law of nations_ (london, 1899); john westlake, _chapters on the principles of international law_ (cambridge, 1894), _international law_, vol. i. \"peace\" (cambridge, 1904), vol. ii. \"war\" (1907); francis wharton, _digest of the international law of the united states, taken from documents issued by presidents and secretaries of state, from decisions of federal courts and opinions of attorneys-general_ (washington, 1886, 3 vols., official), _the revolutionary diplomatic correspondence of the united states_ (6 vols., washington, 1889, official); h. wheaton, _history of the law of nations in europe and america from the earliest times to the treaty of washington, 1842_ (new york, 1845); _elements of international law_ (1st ed., 1836; edit. lawrence, 1855; edit. dana, 1866; edit. boyd, london, 1880; edit. abdy, cambridge, 1888; 3rd eng. ed. by sir sherston baker, 1893; 4th eng. ed. by atlay, 1904); wildman, _institutes of international law_ (london, 1849); theodore d. woolsey, _introduction to the study of international law_ (6th ed., new york, 1891); spencer walpole, _foreign relations_ (\"english citizen\" series, london, 1882); andre weiss, \"crimes et delits politiques dans les rapports de l'autriche et de la russie\" (_journal de droit international prive_, paris, 1883). (t. ba.) footnotes: [1] introduction to the _principles of morals and legislation_ (clarendon press edition of 1879). [2] _the times_, july 26, 1887. [3] _r._ v. _keyn_, 2, ex.d. 63. [4] address at saratoga springs, n.y., 1896 (_law quarterly review_, october 1896). [5] _commentaries on the law of england_, 4th ed., iv. 66. [6] austin's view, as set out in the _province of jurisprudence determined_, is that laws proper, or properly so-called, are commands; laws which are not commands are laws improper or improperly so-called. a command implies a definite superior in a position to enforce the command. where there is no superior to impose obedience there is no law. rules which \"are imposed among nations or sovereigns by opinions current among nations are usually styled the law of nations or international law. now, a law set or imposed by public opinion is a law improperly so-called\" (p. 147). for sir h. maine's views see below. [7] introduction to the _principles of morals and legislation_ (oxford, 1879), pp. 24 et seq. [8] _province of jurisprudence determined_ (1861), p. 177; austin explains his view more fully at p. 127. [9] _international law_, p. 50. [10] _droit des gens_ (1896), i. 22. compare savigny: \"a community of judicial conscience can be formed among nations like that which positive law creates in the bosom of one people. the foundations of that intellectual community are constituted partly by a community of race, partly and especially by a community of religious convictions. such is the basis of the law of nations which exists principally among european christian states, but which was not known to the peoples of antiquity. we are entitled to look upon this law as a positive law, although it is an incomplete judicial formation\" (eine unvollendete rechtsbildung), _system des heutigen romischen rechts_ (1840), i. s 11. [11] _elements_ (london, 1885), pp. 22 et seq. [12] \"it seems to me,\" says professor l. oppenheim, \"that most writers confound the conception of 'source' with that of 'cause,' and through this mistake come to a standpoint from which certain factors which influence the growth of international law appear as sources of rules of the law of nations. this mistake can be avoided by going back to the meaning of the term 'source' in general. source means a spring or well, and has to be defined as the rising from the ground of a stream of water; and, wanting to know whence it comes, we follow the stream upwards until we come to the spot where it rises naturally from the ground. on that spot, we say, is the source of the stream of water. we know very well that this source is not the cause of the existence of the stream of water. 'source' signifies only the natural rising of water from a certain spot of the ground, whatever natural causes there may be for that rising. if we apply the conception of source in this meaning to the term 'source of law' the confusion of source with cause cannot arise. just as we see streams of water running over the surface of the earth, so we see, as it were, streams of rules running over the area of law. and if we want to know whence these rules come, we have to follow these streams upwards until we come to their beginning. where we find that such rules rise into existence there is the source of them. of course, rules of law do not rise from a spot on the ground as water does; they rise from facts in the historical development of a community. thus a good many rules of law rise every year from the acts of parliament. source of law is therefore the name for an historical fact out of which rules of conduct rise into existence and legal force\" (international law, london, 1905, sec. 15.). [13] _international law_ (london, 1905) sec. 19. [14] note 8 to grotius, l., ii. c. iii. s 3. [15] bishop percy's translation (1847), p. 138. [16] we have seen this in the progress made in the three instances given above at the congress of paris (1856), the conference of berlin (1878) and the hague conference of 1907. international law (private). there is in every territory the law of the land, or territorial law, by which the courts decide all cases that include no circumstances connected with any foreign territory. often, however, such a circumstance suggests the question whether justice does not require that the law of some other territory shall be applied. thus the gretna green marriages, by which english minors escaped the necessity of banns or the consent of parents or guardians, suggested the question, which was answered in the affirmative, whether even in england their validity ought not to be tried by the law of scotland, where they were celebrated. often, again, the question is suggested whether justice does not require that the courts of law should allow some effect to foreign legal proceedings, such as a judgment obtained or litigation pending abroad. such questions as these are answered by private international law, which, since both laws and legal proceedings are emanations of public authority, may be defined as the department of legal science which is concerned with the effect to be given in the courts of law of any territory to public authority of another territory. the extradition of criminals is also an effect given to foreign public authority, but rather by the government which surrenders the criminal (see extradition) than by the courts of law, whose only function is to check the surrender so far as the domestic legislation allows them to do so. if private international law were defined as the effect to be given by any mode in one territory to the public authority of another, extradition would be included in it, as is often done; but since the principles governing extradition have little to do with those applicable to other cases, it seems best to treat it as a separate department of law, as is generally done in england. _comity of nations._--in the 17th century the dutch jurists paul and john voet and huber brought forward a view which has since been largely adopted in england and the united states, namely, that the effect given by courts of law to foreign public authority is only due to the comity of nations, but for which every possible question before them would have to be decided by the law of the land. comity, in that phrase, may only be intended to express the truth that foreign public authority has no inherent effect, without denying that the effect which domestic public authority allows to it is dictated by justice. but the limitations implied in the popular meaning of comity have sometimes been made the ground for deciding questions of private international law in the manner supposed to be most for the interest of litigants belonging to the territory; the phrase is consequently reprobated by most european continental writers, and had better be dropped. the justice on which private international law is founded acknowledges no interest but the general one of intercourse between persons sharing a common civilization in different countries. this interest, as manifesting itself in the domain of law, it seeks to satisfy and it is therefore a true legal justice, rightly classed under _law_, _droit_, _recht_, _diritto_, _derecho_ and other corresponding terms. of the two words which, together with _law_, make up the title of our subject, _private_ is justified by the fact that its application is between litigants in courts of law, and not between governments except so far as they may be such litigants. _international_ (although _interterritorial_ would be better) is justified by the facts that public authority, which may be internationally foreign, has to be considered, and that governments display a great interest in the question by concluding treaties about it, and occasionally even by suspending diplomatic relations when a court of one country has applied to the subjects of another a rule which the government of the latter deems unjust. but those who think that the primary division of law should be into public and private, and not into international (or interterritorial) and territorial, object to the order in which the three words of the name are usually placed, and call the subject \"international private law.\" _conflict of laws._--this is another name for our subject, and indeed an older one than \"private international law,\" besides being still much used. but although laws may differ, they cannot properly be said to conflict, unless each can lay a just claim to application in the same circumstances. now this does not happen. the justice which points out that in certain cases effect ought to be given in one territory to the laws or legal proceedings of another really traces the limits of laws and legal proceedings in space; and the tracing of limits is rather the prevention of conflict than its solution. savigny has well pointed out that our subject is analogous to the determination of the limits of laws in time, which has to be made when the just application of a new enactment is to be distinguished from the _ex post facto_ application which cannot justly be allowed it. the truth which is aimed at in the phrase \"conflict of laws\" is that the main problem of our subject is the selection of a law for each given case; but different laws are candidates for selection, not from anything in them as laws, but from differing opinions about the justice of the case. from this selection, again, will be seen the contrast between private international law and attempts at the assimilation of the laws of different countries. to a great extent such assimilation is desirable, especially in mercantile law, but it must always be limited by different views of social order and differences in national habits of thought and action. so far as it is realized, private international law comes to an end with the occasion for selection. _territory._--this word, as entering into the definition of private international law, does not imply a separate state, whether sovereign or semi-sovereign; it includes every geographical area having a separate legal system, england and scotland, as well as france or germany. the case of the gretna green marriages illustrates the necessity of rules of private international law between all such, as well as between areas internationally foreign to one another; and indeed the rules are so applied, and in the language of our subject, the area of every separate legal system is foreign to every other such area. only where a rule contemplates a person as attached more or less permanently to a particular territory, the tie which so attaches him to it may be either nationality or domicile if the territory is a separate state, as france; but it can only be domicile if the territory is combined with others in one state. nothing but domicile can distinguish british subjects as belonging to england, scotland or jamaica, or citizens of the united states as belonging to new york or pennsylvania. legal rules must have relation to the physical and mental characters, and the consequent habits of action, of the populations for which they are intended; they would not satisfy legal justice if they endangered social order as understood and desired by those populations, or if they failed to give due effect to the expectations of parties. this must be true for the rules of private international law as well as for those of any territorial law, and it leads us to ask whether the differences which preclude the universal identity of the latter must not also preclude the existence of the former. the answer is: (1) that where circumstances connected with different territories are concerned, wise rules for the selection of a law will generally give better effect to the expectations of the parties than an exclusive adherence to the territorial law of the court; (2) that the circumstances in which a foreign law is held to apply are exceptional as compared with those in which the domestic law applies, and naturally occur oftenest among the persons and in the affairs having most of a cosmopolitan character, so that the moral shock of applying to them a law founded on a foreign social order is greatly attenuated; (3) that throughout christendom (to which japan has now been added for legal purposes) there does exist, though not an identity, yet a considerable similarity in views of social order and prevalent habits of thought and action. within the same geographical limits there also exists another requisite for the working of a system of private international law, namely, a mutual confidence between countries in the enlightenment and purity of their respective judicatures, to whose proceedings the respect enjoined by the rules of our subject is to be mutually given. even within the geographical limits just mentioned there are certain differences on points of social order, especially on marriage or divorce, which have hitherto prevented a complete agreement being attained in the rules of private international law. but no attempt has ever been made to establish any system of the kind as between christian communities and mahommedan or other polygamous ones, or between countries enjoying a christian standard of civilization and those, of which china may be taken as an example, which, whether polygamous or not, do not inspire the necessary confidence in their judicatures. in turkey and other eastern countries (in which designation japan is no longer included for purposes of law) christians are placed by treaty under the jurisdiction in civil matters of their respective consuls. when in the courts of christian countries eastern persons or circumstances connected with eastern laws have to be dealt with, the peculiar institutions of those countries are not enforced; and while in other respects the judges may be assisted by some of the rules of private international law, especially such as have for their object to carry into effect the reasonable intentions of parties, yet those rules are not applied as parts of an authoritative system. rules for the selection of the territorial law to be applied in the different classes of cases, or for the recognition of foreign legal proceedings, have sometimes been made the subject of international treaties, and have often been enacted by territorial legislatures. england possesses a few such enactments, as in the bills of exchange act 1882, and many other countries possess them to a much larger extent in their codes. where such enactments exist, or where treaty stipulations have been entered into, and the territorial law makes such stipulations binding on the judges, the courts of law must obey and apply them as they must obey and apply any other part of the law of the land. if, as in england, judicial precedents are held to be binding, so that the law of the land consists in part of judge-made law, a similar result is produced; an english court must follow english precedents on the application of foreign law or the refusal to apply it, to the same extent to which it would be bound to follow them on any other point. so far as our matter remains open for a judge, he has, to assist him towards a just decision, the treaties, written laws and judicial precedents of other countries as examples, and a vast literature which has grown up in all christian countries. that this apparatus is far from having furnished concordant results is due, not only to the divergences on points of social order referred to, but also to the different bases of the legal systems with which the respective governments and writers have been familiar. the legal systems of different countries have been founded on roman law, feudal law, english common law and still other bases. the arguments of lawyers are affected by the prepossessions thence arising, and they have consequently failed to arrive by their unaided efforts at so much agreement on the rules of private international law as would have been compatible with the conditions and modes of life and action surrounding them. but the general acceptance of a complete body of rules on private international law is a goal which for other countries than england is well within sight by the road of international treaties concluded under the joint direction of professional and non-professional minds. the most remarkable steps taken in or towards the conclusion of such treaties are those initiated, to its high credit, by the government of the netherlands. that government first moved in the matter in 1874, and has succeeded in assembling at the hague the official representatives of nearly all european powers in conferences held in 1893, 1894, 1900 and 1904. at these conferences rules on many branches of private international law were agreed on for submission to the respective governments, which has led to conventions, one of the 14th of november 1896, three of the 12th of june 1902, and four of the 19th of july 1905, regulating the selection of the laws for determining the validity of marriage and of contracts made on the occasion of marriage, their effects on property and on the status of the wife and children, divorce and judicial separation, the guardianship of minors and of interdicted persons, the validity of testamentary dispositions and the rules of intestate succession, and many points of judicial procedure. these conventions may be found at length in the _revue de droit international et de legislation comparee_, t. 28, pp. 574-579; 2^e serie, t. 4, pp. 485-500; and 2^e serie, t. 7, pp. 646-678. a draft relating to bankruptcy was also prepared at the conference of 1904, but was intended to serve, not as a general convention, but as the base of separate conventions to be concluded between particular states. the extent to which the continent has become united with regard to private international law appears from the fact that france, germany, italy, the netherlands, portugal, rumania and sweden are parties to all the conventions--that luxemburg, russia and spain are parties to those relating to judicial procedure--and that all the ten except russia, but with the addition of austria, belgium and switzerland, are parties to those on the validity of marriage, divorce and judicial separation, and the guardianship of minors; while all remain open to adhesion by other powers. it is much to be regretted that the british government has declined all invitations to take part in this great international work. the fact must in part be ascribed to the hindrance which the difference between the english common law and the roman law places, even for lawyers, in the way of joint action with the continent, and in part to the necessity that the rules laid down in any convention should be enacted for the united kingdom by parliament, the leaders of which belonging to either party take no interest in any such matters. next in importance among combined official efforts should be mentioned the congress of seven south american states at montevideo in 1888-1889, which on many branches of private international law drew up rules intended for adoption by treaty on that continent. _nationality: domicile._--coming now to the particular rules of private international law which are received in england, or have been most widely received elsewhere, the most obvious cases which present themselves for admitting foreign circumstances to influence the decision of a judge are those in which rights are so connected with the person of an individual that the justice of deciding on them by a law having relation to his person speaks almost for itself. hence arises the notion of a personal law, which must be that either of the person's political nationality or of his domicile, these being the only circumstances that for the time being are fixed for the individual, irrespectively of the spot where he may happen to be, and of the transaction in which he may happen to engage. we have seen in the article on domicile what is the legal meaning of that term, how its existence is ascertained, that in and long after the middle ages it was the usual criterion of the personal law, and that in modern times political nationality has largely replaced it as such criterion on the continent of europe. thus as well by the conventions mentioned as by the codes of many states--france, italy and germany among the number--the capacity and status of persons is now governed by the law of their political nationality. in latin america the criterion of the personal law is still generally held to be domicile, which is among the reasons why the south american states prefer to pursue the codification of private international law independently of european conferences and conventions. the english courts were slow to recognize a personal law at all and as late as lord eldon's time they held that the competency of a person to contract depended on the law of the place where the contract was made. their decisions have since come into line with the continental decisions so far as to make capacity and status depend on a personal law, but not so far as to make nationality its criterion. hence in england, and in a minority of european continental countries, of which denmark is an example, the capacity of a party to enter into a contract, whether it be disputed on the ground of his age, or, in the case of the contract of marriage, on the ground of his consanguinity or affinity with the other party, will be decided by the law of his domicile. guardians, curators and committees of foreign minors or lunatics, deriving their authority from the law or jurisdiction of the latter's domicile or nationality, can sue and give receipts for their personal property. a court will not decree the divorce of persons not domiciled within its jurisdiction, and it will recognize foreign divorces if, and only if, they have been decreed by a jurisdiction to which the parties were subject by domicile or nationality. and the legitimation of a child by the subsequent marriage of its parents will be held to depend on the law of its father's domicile or nationality. but the reference to the place of contract, carried to north america with the rest of the english jurisprudence of that date, still maintains in the courts of the united states a struggle with the doctrine of personal law as governing capacity and status. here must be noticed a difficulty which arises about the application of any foreign law to the capacity for contracting. it will be understood by the german provision intended to meet it, namely, that \"if a foreigner enters in germany into a transaction for which he is incapable or has only a restricted capacity, he is to be treated for that transaction as being so far capable as he would be by the german legislation. this, however, does not apply to transactions with regard to rights of family or of succession, or to those disposing of foreign immovable property\" (art. 7 of the statute enacting the code). in a spirit similar to that which dictated the german enactment, the french courts have not generally allowed a frenchman to suffer from the incapacity, by his personal law, of a foreigner who contracts in france, when the foreigner would have been capable by french law, and the frenchman was in good faith and without great imprudence ignorant of his incapacity. lately a disposition has been shown to limit this protection of nationals to the case in which the foreigner has been guilty of fraud. english courts usually hold themselves to be more stringently bound by rules, whether those enacted by parliament or those adopted for themselves; and if they should continue to profess the doctrine that capacity depends on the law of the domicile, it is not probable that they will deem themselves entitled to make exceptions for the protection of persons contracting in england with foreigners not enjoying such capacity. the point furnishes an illustration of the fact that to deal satisfactorily with so complex a subject as private international law requires the assistance of the legislature, which again cannot be given with full utility unless uniform provisions, to be enacted in different countries, are settled by international convention. another ground for the application of a personal law is furnished by the cases in which masses of property and rights have to be dealt with collectively, by reason of their being grouped around persons. the principal instances of that kind are when it is necessary to determine the validity and operation of a marriage settlement or contract, or the effect of marriage on the property of the husband and wife in the absence of any express settlement or contract, and when property passes on death, either by a will or by intestate succession. these matters, at least when the property concerned is movable, are generally referred to the personal law of the husband at the time of the marriage, or to that of the deceased respectively; but about them, besides the question between domicile and nationality, there arises the question whether immovable property is to be included in the mass governed by the personal law, or is to follow the territorial law of its own situation (_lex situs_). here we touch the distinction between _real_ and _personal_ statutes which arose in the middle ages, when the local legislation of the free cities was contrasted, under the name of statutes, with the general roman law. that distinction did not bear the same character at all times, but in the 16th century, under d'argentre, it acquired its most developed form, absorbing all laws into one or other of the two classes, and giving a vast extension to the real class, for which was claimed exclusive application to immovables situate in the territory of the law. in accordance with this system, the highly feudal character of which was very sympathetic to english jurisprudence, english practice has refused to include english immovables in the mass to be dealt with as a unit on marriage or death. but it refers the validity and operation of a marriage settlement, at least as to movables, and the effect of marriage, in the absence of express contract, on the movable property of the husband and wife, to the law of the husband's domicile at the time of the marriage, called the matrimonial domicile. and with regard to the succession to movables on death, it adopts the principle of massing them irrespectively of their situation, so far as is permitted by the peculiar system under which the property in movables situate in england does not pass directly to the legatees or next of kin, but to the executors or administrators, who are charged with the duty of paying the debts of the deceased and distributing the beneficial surplus. the validity of a will of movables, otherwise than in respect of form (about which more hereafter), and the rights, whether under a will or under an intestacy, in the beneficial surplus arising from them, are determined in england by the law of the testator's last domicile. on the points glanced at in this paragraph the decisions in the united states generally agree with those in england, only allowing the pecuniary relations of a married couple, in the absence of express contract, to be varied by a change of domicile, notwithstanding that such change is in the husband's exclusive power, instead of maintaining them as fixed by the matrimonial domicile. on the continent of europe partisans of a variation after the marriage are scarcely to be found; but as between the nationality and the domicile of the husband or of the deceased, and on the question whether the mass to be governed either by nationality or domicile, on marriage or on death, includes immovables situate under a different law, the division of opinion, legislation and practice is considerable and intricate. _lex situs_, _lex loci actus_, _lex loci contractus_, _lex fori._--the law of the territory in which they are situate (_lex situs_) is generally applied to the property in particular things, whether movable or immovable, so far as they are not included in any mass grouped round a person; in england, therefore, always to immovables. in drawing up documents and conducting ceremonies public functionaries must necessarily follow the law from which they derive their authority, wherefore the law of the place where any public document is entered into, or any public ceremony performed (_lex loci actus_), is the only one that can be followed in its external form. this maxim applies to the forms of notarial acts, and to that of marriage celebrated with the official concurrence of clergymen, registrars and so forth. and since documents and ceremonies entered into without official concurrence are rarer on the continent of europe than in england, the inevitableness of the form of the _lex actus_, when such concurrence is had, has generally led to that form being also held sufficient whenever the affair comes to be inquired into later. nor in england has the sufficiency of the form of the _lex loci actus_ for the celebration of marriage ever been doubted, but a will made by a notarial act in accordance with that law was not admitted. disregarding the distinction between external form and internal validity and operation, a will of english land could not take effect unless made in english form (that is, since the wills act of 1837, with two witnesses), and a will of personal estate could not be admitted in england to probate unless made in the form of the law of the testator's last domicile. but now, by lord kingsdown's act, passed in 1861, there are given for wills of personal property made by british subjects, besides the form of their last domicile, three alternative forms, namely, the form of the place of making the will, that of the testator's domicile at the time when it was made, and that of the part of the british dominions where he had his domicile of origin--only the first of the three, however, being offered when the will is made in the united kingdom; and no will is to be revoked or invalidated by a change of the testator's domicile after making it. the law of the place of contract _lex loci contractus_, is distinguished into that of the place where the contract is entered into, _lex loci contractus celebrati_, and that of the place where it is to be performed, which, from the particular case in which the performance consists only in a payment, is called _lex loci solutionis_. to the first of these is generally referred the formal validity of a contract, so far as entered into without the intervention of a functionary, and therefore not covered by the principle of the _lex loci actus_, and so far also as the performance is not tied to any particular place. for example, the form for contracting marriage, whether with official intervention as in england, or by private and even oral contract as in scotland, depends, both as to necessity and as to sufficiency, on the law of the place of contracting it. but as to the internal validity, interpretation and operation of a contract, there has been and still remains much difference of opinion between the laws of the place of contracting and of that of stipulated performance; the former being supported, among other grounds, on some texts of roman law which savigny has shown to have been misunderstood, while the latter agrees much oftener with the intention of the parties. the english decisions do not adhere closely to either of those laws, but while repeating much of the traditional language about the _lex loci contractus_, they aim at doing substantial justice by referring a contract to that place with which its matter has the closest connexion, or which the intention of the parties points out. in matters of legal procedure every court follows its own practice exclusively (_lex fori_), as, for instance, whether the remedy on a contract shall be damages or specific performance, and whether a judgment may be executed against the person or only against the property of a party. a point much disputed under this head is whether the time of limitation of actions shall, as held in the united kingdom, be decided by the _lex fori_, as an incident to the procedure, or by the _lex loci contractus_ in one of its varieties, as an essential modality of the obligation. _renvoi._--we will now suppose that the rules of private international law, as practised in any country (a), refer a case arising in its courts to the law of another country (b), as being that of the domicile or nationality of a person, and that those rules as practised in (b) in turn refer (_renvoient_) the same case to the law of (a), as being that of the nationality or domicile or perhaps of the _locus actus_: what are the courts of (a) to decide? this question, which involves nothing less than that of the meaning in which the reference to a law is to be understood in our subject, has during recent years excited great discussion both among the jurists and in the courts of all nations. it is answered by the english courts to the effect that (b) by its reference back (_renvoi_) has disclaimed the control of the case, which must therefore be decided without regard to (b)'s particular laws. see _in re trufort_, 36 ch. d. 600, and _in re johnson_, 1903, 1 ch. 821. this principle practically gives efficacy to the renvoi, and coincides with the express provisions both of the above-mentioned convention of the 12th of june 1902, art. 1, as to the right of contracting marriage, and of the statute enacting the german code, art. 27, as to capacity generally. the english law agrees in opinion, and is supported by a numerical preponderance of the judicial precedents in france and belgium; but it must be admitted that a numerical preponderance of the jurists who have declared themselves hold that the courts of (a) ought to apply the particular laws of (b). _public order._--it must not be supposed that the law of the land, the proper territorial law of the court which has to deal with a case in which foreign circumstances arise, always gives way to the foreign law pointed out by the general maxims which even that particular court accepts. all rules for the application of foreign laws are subject to an exception commonly called that of public order, i.e. where such application would interfere with essential principles of morality or policy received in the territory. this reservation is usually made in general terms where legislation on private international law is attempted, as in article 6 of the code napoleon, and preliminary article 12 of the italian code; but the courts have to administer it, as they have also in england and other countries where it rests only on judicial practice, and the greater or less extent given to it is one of the causes of the uncertainty and want of uniformity in our subject. one example often quoted is the refusal of the courts in all christian countries to give effect to polygamous marriage, but this case goes deeper still, for none of the countries in which polygamous marriage exists is allowed to enter at all into the communion of private international law. all, so far as great britain has settled legal relations with them, are among those in which british subjects live under consular protection and jurisdiction, or (in egypt) under that of the mixed courts. a better instance is afforded by the refusal of courts, normally within the pale of european legal communion, to recognize divorce as dissolving a marriage, notwithstanding that it has been decreed under the personal law. as another instance, there can be little doubt that an incapacity to marry imposed by the personal law in virtue of religious vows or orders would be disregarded by the english courts in the case of a person marrying in england. again, it is established in england that damages cannot be recovered for a tort unless the act complained of was a wrong both by the law of the country where it was done and by the law of england; and article 12 of the statute enacting the german code is in accordance with that doctrine. now the law of the country where the act is done would naturally give the standard for measuring its legal consequences, and it seems to be due to the connexion which laws qualifying acts as wrongs have with public order that respect for that law is tempered by respect for the law of the countries in which it is invoked; but article 8 of the belgian code refers the liability for torts to the former law without any restriction. _foreign judgments._--in the rules which have passed before us in the foregoing general review it is easy to perceive a leading motive--that of securing, so far as public order allows, the certainty and stability both of personal and of business relations in the international or interterritorial intercourse which has always accompanied civilization, but is now especially frequent and extensive. it has been attempted to erect this motive into a guiding principle of law, laying down that rights once accrued in any territory, or sometimes, it is said, by virtue of any territorial law, are to be recognized and enforced, subject to the requirements of public order, in any other territory in which they may be invoked before a court of justice. from this, which may be called the principle of the acceptance of foreign rights, it is claimed that the rules of private international law are to be deduced, and that by their consonance with it any such rules are to be tested when proposed. the difficulties of the subject, however, do not admit of being unlocked by so simple a key. they meet us again when we inquire in what territory, or by virtue of what territorial law, a particular alleged right has accrued. persons belonging by domicile or nationality to a enter in b into a contract to be performed in c; where and by virtue of what law does either acquire a right against the other? is it to be in or by the law of their homes, where they are normally, though not always necessarily, to be sued? or of the country where they contract, which for various purposes, as those of police, but not for all purposes, has the control of them when they contract? or of the country where their contract is to be performed, under a similar control by which, perhaps extending to the very acts of performance, they or their agents may be brought by the operation of their contract? evidently we cannot apply the principle to guide us in our choice of a law till the very problem which that choice presents has first been solved. there is, however, one case in which the principle of the acceptance of foreign rights leads to a conclusion, namely, where the right has been declared by the judgment of a competent court, which may have been given in an ordinary case, presenting no question of private international law, but in which, if such a question arose, it has been solved by choosing the law and basing the judgment on it. the rule in england and in many other countries as to foreign judgments is that the judgments of competent courts in other territories (foreign in the sense of civil law, whether politically foreign or not) are to be enforced without reopening the merits of the questions disposed of by them. in some countries, however, a foreign judgment is examinable on its merits before being enforced. this was formerly the unquestioned rule in france, though the practice there seems to be now turning the other way. in the system adopted in england everything turns on the competence. for judgments _in rem_, declaring or disposing of the property in a thing, the test of competence is that the thing, whether movable or immovable, was within the territory of the court. judgments which declare the status of a person, as with regard to marriage or majority, are competent if the person was subject to the jurisdiction by nationality or domicile. the property or the status is treated as being what has been so declared or decreed. for judgments _in personam_, decreeing the payment of a certain sum, the test of competence for the present purpose is again that the person against whom it was pronounced was subject to the jurisdiction by nationality or domicile; the judgment may then be sued on as giving of itself a good title to the sum decreed by it to be paid. for domestic purposes the competence may exist on quite other grounds. by its own territorial law a court may be authorized to entertain a suit _in personam_ because the plaintiff possesses its nationality, as by article 14 of the code napoleon, or because the contract sued on was made or was to be performed in the territory, and so forth. but judgments based on these grounds will not be enforceable outside the territory. here we touch the root principles of our subject. the distinction between domestic and international grounds of competence can only be explained by the history of law, and we come in sight of the fact that the rules of private international law rest finally on conventions which could not have existed if the civilization of different countries had not so much that was common in its origin and in the course which it has followed, but which suit the life of those countries just because that life is itself another outcome of those common antecedents. authorities.--the best authority on the history of private international law to the end of the 18th century is laine, _introduction au droit international prive_ (2 vols., paris, 1888). for modern progress the most copious materials are to be found in the _revue de droit international et de legislation comparee_ (brussels, from 1869); the _journal du droit international prive et de la jurisprudence comparee_ (paris, from 1874); and the _annuaire de l'institut de droit international_ (paris, from 1877). the most comprehensive general treatise is that of von bar, of which the 2nd edition appeared at gottingen in 1889, and has been translated: _the theory and practice of private international law_, by l. v. bar, 2nd ed., translated, by gillespie (edinburgh, 1892). other works, many of great merit, are numerous in all languages; but in this, as in every department of law, the first place for england and the united states must be given to the different law reports, since in those countries it is not in the study but on the bench that the highest legal intellect is usually displayed, and the judgments delivered are often essays on the points involved. the following works, however, among others, treat the subject from the english or united states point of view: story, _commentaries on the conflict of laws, foreign and domestic_, 8th ed., by bigelow (boston, 1883); wharton, _a treatise on the conflict of laws or private international law_ (2nd ed., philadelphia, 1881); j. westlake, _a treatise on private international law, with principal reference to its practice in england_ (4th ed., london, 1905); foote, _a concise treatise on private international jurisprudence, based on the decisions in the english courts_ (3rd ed., london, 1904); a. v. dicey, _a digest of the law of england with reference to the conflict of laws_ (2nd ed., london, 1908); beale, _a selection of cases on the conflict of laws, with notes and summary_ (cambridge, mass., 1900-1903); bate, _notes on the doctrine of renvoi_ (1904). (jno. w.) interpellation (from lat. _interpellare_, to interrupt), a term meaning, in general, an interruption, more particularly used of a method of procedure adopted in some of the legislative chambers of continental europe, especially those of france and italy, and somewhat similar to that of a motion to adjourn the house in the british parliament. it was originally confined to the asking of a question, after due notice, on some affair of state. it is now, however, the chief means by which the policy or action of the ministry of the day is challenged. an interpellation can be brought on without the consent of the minister to be attacked; it is usually made the subject of a general debate, and generally ends with a vote of confidence or want of confidence in the ministry. the right of permitting or vetoing an interpellation rests with the chamber. in france a tendency has been growing among deputies to use the interpellation as a method of attack on or accusation against individual colleagues.",
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