933 



INTERNATIONAL LAW. 



INTERNATIONAL LAW 



931 



French. The late war with Russia exhibited a similar attempt to 

 prevent the aggrandisement of Russia at the expense of Turkey. The 

 safety of small states from being absorbed by their larger neighbours 

 thus lies in the jealousy which their neighbours feel of each other's 

 aggrandisement. So the jealousy of rulers is one barrier to national 

 injustice. Another is public opinion : sometimes that of the nation 

 whose rulers would be prepared to commit injustice sometimes that 

 of other nations. Of course it can only be to a very limited extent 

 that the public feeling of a despotic government can check the grasping 

 spirit of its rulers ; but the public feeling of the constitutional and 

 democratic states is the great check on the injustice that might be 

 perpetrated by a nation when it becomes so powerful as Great Britain. 

 The seizure of the Danish fleet by the English during the war with 

 Napoleon has been a subject of warm censure. Necessity even the 

 plea that Napoleon would have used the fleet to invade our own shores 

 has not been accepted in palliation of the act ; and the manner in 

 which it has been canvassed is very likely to prevent any government 

 from adopting the precedent. The partition of Poland is an instance 

 of national injustice condemned by the public feeling of countries other 

 than those by which it was perpetrated ; and it may be questioned 

 whether the states which accomplished the partition may not yet suffer 

 by*it. Good fame in the community of nations is like respectability 

 in private circles, a source of power through external support ; and 

 the conduct of Russia towards Poland has frequently diverted from the 

 former the sympathy of free nations. It need scarcely be observed 

 that the press, whether fugitive or permanent, is the most powerful 

 organ of this public opinion, and that the views of able historians, 

 jurists, and moralists, have much influence in the preservation of 

 international justice. 



Among the principal subjects of dispute in this department of 

 international law are the sovereignty of territory and the proper 

 boundaries of states ; questions as to discovery and first occupancy of 

 barbarous countries ; questions as to any exclusive right to frequent 

 certain seas, aud here there is a well-known distinction between the 

 broad ocean and the narrow seas that lie close to particular territories ; 

 questions regarding the right of navigation in rivers which may be 

 either between the upper and lower territories, or between states on 

 opposite banks ; questions as to the right of harbour or fishing, &c. ; 

 and questions as to the right of trading with particular states. A very 

 advantageous method of adjusting minor international disputes has 

 been frequently had recourse to of late in a submission to the arbitra- 

 tion of a neutral power. Pride and the spirit of not yielding to 

 intimidation or aggrandisement have often more influence in the 

 resistance offered by one state to the claim of another, than the desire 

 to keep what is demanded. In such a case the national pride is not 

 injured when that which is yielded to is the award of a neutral party, 

 not the demand of an opponent. It has been suggested by Bentham 

 and Mill that the civilised states of the world should establish among 

 themselves a congress, which should adj udicate on all disputes between 

 its members, the members being excluded from voting in then- own 

 disputes. 



The Second department into which international law is divided 

 the rights and obligations of individuals as affected by the conduct of 

 states towards each other has, like the first, been examined by the 

 publicists in their theoretical manner ; but it has never, perhaps, 

 received so much practical illustration as it did in the British courts, 

 particularly the Prize Court, during the war with France. In a 

 despotic country it would of course scarcely ever occur that the bench 

 should fail to give effect to the national policy of the government, 

 whatever that may be. But in England it was the rule that foreigners 

 as well as natives were entitled to the rigid administration of the law, 

 and that, if the proceedings of the government were at variance with 

 the rights of parties according to the law of peace and war, individuals 

 might have redress. Thus, when Great Britain, in opposition to the 

 Berlin decrees, tried to establish a " paper blockade," that is to say, by 

 force of orders in council to declare places to be under blockade, 

 whether there were a force present to support it or not, Sir William 

 Scott found that " in the very notion of a complete blockade, it is 

 included that the besieging force can apply its power to every point in 

 the blockaded state. If it cannot, it is no blockade of that quarter 

 where its power cannot be brought to bear." 



It has frequently been observed, that as to all departments of the 

 law of nations, uncivilised countries are at the mercy of the civilised : 

 that not having any means of reciprocating the action of international 

 laws, from their having no systematic judicatories of their own, they 

 have not even the frail tenure of generally received opinions as to 

 what the conduct of independent nations towards each other ought to 

 be, for their protection. This is in some measure true. If a weak 

 civilised nation, which can eloquently appeal to the law of nations, is 

 feebly protected against the injustice of a strong nation, still less etfec 

 tually is a barbarous community, which never heard of international 

 law, and knows not how to appeal to its acknowledged principles, pro 

 tected by it ; and, in regard to such communities, the humanity and 

 conscience of the powerful nations coming in contact with them are 

 their protection, rather than any rules of international law. Thus 

 when, as in the instance of a colonial government or otherwise, such a 

 nation as the British has to deal with the inhabitants of a barbarous 

 country, it cannot be said that these inhabitants have the law o 



nations to appeal to if they are unjustly treated, and there is no 

 security for their being well and humanely used but the morality and 

 conscience of the British nation and its government. How far 

 civilised nations had in former times disregarded all feelings of common 

 lumanity in their intercourse with inferior races, the history of 

 colonisation, and especially that relating to the continent of America, 

 s a horrible record. In later days higher notions have been enter- 

 tained of the responsibility of superior power, and the civilised man 

 has in some measure ceased to make his first advances to the notice 

 of the barbarian in the character of a murderer and a pillager. 

 England has in this improved morality so far advanced before other 

 nations, as to be the protector of barbarous races from the oppression 

 of others, in her efforts for the abolition of the slave trade and the 

 preservation of aboriginal nations. These efforts, in so far as they are 

 an anomaly in the general conduct of nations, have introduced some 

 necessary exceptions to the rules of international law applicable to the 

 rights of persons. This has consisted in the necessity of treating those 

 who are injured by the slave trade, namely, the slaves carried off, as if 

 they were subjects of this country subjected to injury, > while the 

 deporters have likewise been of necessity treated in the general case as 

 if they were subjects of this country doing the injury. The effect of 

 this state of matters, as an exceptional principle in international law, 

 sometimes occasions difficult questions. In one case a foreign slaver 

 had been captured and taken possession of. The crew rose, and 

 putting the captors to death, recaptured the vessel. They were tried 

 and condemned to death for murder in an English court ; the judge 

 refusing to admit the plea that, as the capture had taken place under 

 our laws, not their laws, they were entitled to regain possession by any 

 means which they chose to adopt. He held it right, in fact, to treat 

 the ship as a prison, and the captured seamen as persons in a British 

 prison. On the question, however, coming before the judges, the con- 

 viction was quashed, the ground of reversal being, that the vessel not 

 having slaves on board was not liable to seizure. In those cases where 

 it is necessary to diverge from the general principle of international 

 law, for the protection of the weak, it is fortunate that the humane 

 and enlightened motive of proceeding is a guarantee for its being 

 beneficially exercised. 



The rights of individuals have sometimes been so much affected by 

 the conduct of nations towards each other, that their own nation has 

 been induced to make war against the nation aggressing. This has 

 twice occurred in our intercourse with America : one war was caused 

 by our restrictions on the commerce of America by the orders in 

 council; another by our searching American merchant vessels for 

 British seamen. This subject of " the right of search," as it is termed, 

 is still in an unsatisfactory and unsettled state. 



The Third division of international law is that which most properly 

 comes under the head " Conflict of Laws," namely, the principles that 

 ought to regulate the rights and obligations of private parties when 

 they are affected by the separate internal codes of distinct nations. 

 This involves questions with individuals, and not, at least in the first 

 instance, questions with states ; and the adjustment of each question 

 depends on the view taken by the law of the country to which the 

 individual or his property is amenable. But it has this distinctive 

 feature, that the circumstances under which disputes arise are not in 

 the conduct of one nation towards another, but in differences between 

 the internal laws of the countries, which internal laws disagree, not 

 because the one nation has a dispute with the other, but in the general 

 case because its legislators have taken its internal situation solely into 

 consideration, and have overlooked the existence of other nations. 

 There can be no part of the world where this species of international 

 law can be so well illustrated as in the United States a collection of 

 communities, each having an internal system of administration, but 

 each acting on principles of harmony and alliance with the other 

 states of the Union. It is thus natural that America should have 

 produced the best work on the subject, in Professor Story's ' Com- 

 mentaries on the Conflict of Laws Foreign and Domestic, in regard 

 to Contracts, Rights, and Remedies ; and especially in regard to 

 Marriages, Divorces, Wills, Successions, and Judgments,' of which 

 two editions are now known and esteemed in this country. The 

 leading rule of international law in this department is, that each 

 civilised nation is to give efficacy to the laws of another country, 

 unless its own laws or the general principles of justice are thereby 

 invaded. We have the broadest and most distinct illustrations of 

 this rule in the criminal law. The progress of opinion has lately 

 been in favour of each nation rendering back fugitive criminals, to bo 

 dealt with according to the law of the country where they have com- 

 mitted any private crime against person or property. In conformity 

 with this principle, treaties have been made with several states, for 

 enforcing which, in this country, acts of parliament have been passed 

 enabling the secretary of state, on the requisition of the ambassador 

 or other representative, to issue a warrant to magistrates to seize a 

 person accused of a crime, a magistrate being enjoined to put it in 

 force on his being satisfied that the charge is of such a nature as 

 would authorise him to commit a person charged with perpetrating 

 it in his own jurisdiction. [CONVENTION TREATIES.] 



But it has been a rule in many countries, and particularly in our 

 own, that no aid is to be given for the enforcement of the political 

 laws of foreign states. And hence as in other branches of international 



