2 Article III, Sec. 2, Foster & Elam v. Neilson (1829) 2 Pet. 253, 314; Wunderle v. Wunderle (1893), 144 111. 40;Whitney v. Robertson(1887), 124 U. S. 190; Geofroy v. Riggs (1889), 133 U. S. 258. And see generally Butler's Treaty-Making Power of tha United States.

3 Quoted from the opinion of Lord Mansfield in Triquet v. Bath (1764), 3 Burr. 1478, because Lord Mansfield says: “ I was of counsel in this case [before Talbotl and have a full note of it.”

4 “Bentham was the first English writer who viewed law as a whole or criticised English law as a system. He was the first to test English law by a logical standard.” (F. C. Montague in the introduction to his admirable edition of Bentham's Fragment on Government, p. 20.) The Fragment on Government—a searching and withering examination of Blackstone's legal philosophy—appeared in 1776, and the Introduction to Principles of Morals and Legislation in 1789. This latter is perhaps his greatest work, and is at once the clearest exposition of the principle of utility and the most concise and readable statement of his chief principles. For a sympathetic and adequate account of Bentham, see Sir Leslie Stephen, English Utilitarians, vol. i, devoted entirely to Bentham and his philosophy.

5 View of a Complete Code of Laws, chap, iv, works (Bowring's edition, vol. iii, p. 162).

6 For a sketch of Austin, see Sir Leslie Stephen, English Utilitarians vol. iii, pp. 317-336.

7 Exception might well be taken to Austin's contention that law “is set by a given sovereign to a person or persons in a state of subjection to its author.” This paper, however, is chiefly concerned with the question of sanction. See Salmond's Jurisprudence, Appendix II, pp. 628-639.

In his Essays on Some Disputed Questions of International Law (2d ed.), Mr. F. J Lawrence discusses the matter in detail in the essay entitled, Is there a True International Law?

He shows that Austin only examined one element in the law, namely, force, to the exclusion of other necessary elements; that the idea of the sovereign “imposing law is true of but one stage in the development of law, the middle period, when the commands of a sovereign are obeyed because he has power to enforce obedience by coercive measures. It is not absolutely true of modern England. It is better suited to the kingdom of William the Conqueror than to the kingdom of Victoria. I do not assert that there is no element of force in our legal notions of to-day, but I deny that it is the chief element” (p. 20).

He quotes with approval (p. 13) the definition of the judicious Hooker, who says: “They who are thus accustomed to speak apply the name of law unto that only rule of working which superior authority imposeth; whereas we, somewhat more enlarging the sense thereof, term every kind of rule or canon, whereby actions are framed, a law.”

See especially Sir Henry Maine's Early History of Institutions, chapters on Sovereignty, Sovereignty and Empire, pp. 342-400.

See also Westlake's Principles of International Law, pp. viii-ix.

8 The Province of Jurisprudence Determined, vol. i, pp. 231, 232. The edition referred to is the fourth published in 1873 under the editorship of Robert Campbell, and entitled Lectures on Jurisprudence. References to The Lectures as distinguished from The Province, are denoted Lectures, with the appropriate page.

9 The Province, etc., vol. i, p. 189.

10 The Province, etc., vol. i, pp. 188-189.

11 Indeed he calls it “a branch of ethics” (Lectures, vol. ii, p. 593).

12 The Province, etc., vol. i, p. 222.

13 The Province, etc., vol. i, p. 177. An objection to this phraseology is admirably pointed out by Professor Westlake: “Austin indeed, proposing the term ‘positive international morality’ as the substitute for international law, recognized by the word ‘positive’ some distinction among the mutual claims of states, though not connecting it clearly, if at all, with the general conviction and exercise of or the right of enforcement. But unless it be recognized that the distinction rests on that basis there is danger on the one hand of checking the progress of mankind by depreciating the less ripened claims, and on the other hand of putting claims founded only in sectional or individual interest on a par with those which express the general needs of the international society. The late Prof. Montague Bernard drew attention to the latter of these dangers when he said that ‘the fallacy suggested by the phrase “international morality” is a more practically mischievous one than the fallacy suggested by the phrase “international law,” because the temptation to overstrain legal analogies and clothe mere opinions indiscriminately in the robe of law is less dangerous than the contrary tendency to degrade fixed rules into mere opinions’ (Four Lectures on Subjects Connected with Diplomacy, p. 171). It is submitted that both fallacies may be avoided if we decline to treat the law of the land as the only proper kind of jural law, for then, while keeping law distinct from morality we shall not encourage an undue attribution to international law of the character only appropriate to the law of the land” (Principles of International Law, pp. 13-14).

14 The Province, etc., vol. ii, p. 594.

15 Lectures, vol. ii, p. 594.

16 “The want of international organization chiefly makes itself felt, so far as concerns international rules, in the imperfection of the power to define and develop them. But that is a defect from which the law of the land is not always exempt in countries which have attained some considerable degree of advancement. Take, for instance the laws of England in the period of Glanville and Bracton,say the reigns from Henry the Second to Henry the Third, when old local customs, new feudal principles and habits of action, and a good deal of Roman law, then lately made known in this country, were being fused together into one common law, and that by the judges, to whom but little express legislative help was given before Edward the First. While the process was going on, uncertainty reigned over as large a part of the laws of England as the part of international law over which it now reigns. And if we add the private violence, which then exceeded in frequency and impunity the public violence of European states in the nineteenth century, it may safely be said thai international law is now not less certain and better obeyed than was the law of England till the process referred to was fairly complete.” (Westlake's Principles of International Law, pp. 8-9.)

17 Sir Frederick Pollock's Sources of International Law, 2 Columbia Law Review, pp. 514, 515.

18 See the remarkable passage in Salmond's First Principles of Jurisprudence, pp. 95-106.

19 2 Columbia Law Review, 514.

20 Article IV, Sec. 2, Clause 2.

21 Rev. Stat. U. S., Sees. 5278, 5279.

22 See the leading case of Kentucky v. Dennison (1860), 24 How. 66, per Taney, C. J.

23 Cooley's Principles of Constitutional Law (3d ed.), p. 210.

24 Take another illustration from the Constitution. Article V says Congress “shall” under certain conditions “propose amendments,” and “shall call a convention.” The duty is clear, but how can it be enforced?

Again: Suppose a state renders itself obnoxious to the XlVth Amendment, section 2. In such a case “the basis of representation therein shall be reduced * * * .” How can this duty be legally enforced

25 Article III, Sec. 2.

26 The Province, etc., vol. i, pp. 91-92.

27 Lectures, vol. i, pp. 457-458.

28 Lectures, vol. i, pp. 520-521. The subject is further expounded in pp. 521,524.

29 The Province, etc., vol. i, pp, 199-200.

30 Ibid, p. 200.

31 English Utilitarians, vol. iii, p. 331.

32 In his masterly work on International Law, the late W. E. Hall gave the following definition:

“International law consists in certain rules of conduct which modern civilized states regard as being binding on them in their relations with one another with a force comparable in nature and degree to that binding the conscientious person to obey the laws of his country, and which they also regard as being enforceable by appropriate means in case of infringement.”

Professor Westlake, in his recently published book on International Law, Part I (1904),sets the high seal of his approval on this definition in the following words: “We have regarded our subject exactly in the light in which it is placed by Hall,” p. 8.

So considered, international law is stripped of the matters of good form, taste, dress, and ceremony with which many of the older treatises on the subject are encumbered. In this light, the law of nations stands or falls as a legal system.

33 English Utilitarians, vol. iii, p. 328.

34 “Probably nobody,” says Sir Henry Maine, “ever found a difficulty in allowing that laws have the character given to them by Austin, so far as such laws have proceeded from formal legislatures. But many persons, and among them some men of powerful mind, have struggled against the position that the great mass of legal rules which have never been prescribed by the organ of state, conventionally known as the legislature, are commands of the sovereign. The customary law of all countries which have not included their law in codes, and specially the English common law, has often had an origin claimed for them independently of the sovereign, and theories have been propounded on the subject which Austin scouts as mysterious and unintelligible. The way in which Hobbes and he bring such bodies of rules as the common law under their system is by insisting on a maxim which is of vital importance to it—‘whatever the sovereign permits he commands.’ Until customs are enforced by courts of justice, they are merely ‘positive morality,’ rules enforced by opinion but, as soon as courts of justice enforce them, they bcome commands of the sovereign, conveyed through the judges who are his delegates or deputies. It is a better answer to this theory than Austin would perhaps have admitted, that it is founded on a mere artifice of speech, and that it assumes courts of justice to act in a way and from motives of which they are unconscious.” (Early History of Institutions, pp. 364-365.)

And again: “Customary law—a subject on which all of Austin's remarks seem to me comparatively unfruitful—is not obeyed, as enacted law is obeyed.” (Ibid., p 394.)

35 The Sources of International Law, 2 Columbia Law Review, pp. 517-518.

36 For a statement of the necessity of an international law and the manner in which it originated, see the admirable account in Hall's International Law, 1st edition, Appendix I.

The language of Mr. Webster as Secretary of State, may not be amiss: “Every nation,” he says, “on being received, at her own request, into the circle of civilized governments, mus.t understand that she not only attains rights of sovereignty and the dignity of national character, but that she binds herself also to the strict and faithful observance of all those principles, laws and usages which have obtained currency among civilized states * * *. (6 Webster's Works, 437.)

Not only is this true of nations; it was true of the original states of the American Union. For example: “The first crime in the indictment is an infraction of the law of nations. This law, in its full extent is part of the law of this state [Pennsylvania], and is to be collected from the practice of different nations, and the authority of writers” (Respublica v. De Longchamps (1784) 1 Dall. 111). It is to be noted that this case was decided before the formation of the present Constitution.

The text is forcibly confirmed by the language of Chief Justice Taney in Kennett v. Chambers (1852), 14 How. 38, where it is said. “The intercourse of this country with foreign nations, and its policy in regard to them, are placed by the Constitution of the United States in the hands of the government, and its decisions upon these subjects are obligatory upon every citizen of the Union. He is bound to be at war with the nation against which the war-making power has declared war, and equally bound to commit no act of hostility against a nation with which the government is in amity and friendship. This principle is universally acknowledged by the law of nations. It lies at the foundation of all government, as there could be no social order or peaceful relations between the citizens of different countries without it. It is, however, more emphatically true in relation to citizens of the United States.”

37 It is not meant to deny that a state, as such, has rights which an individual member lacks. It is meant, however, to emphasize the fact that the corporation possesses these solely for the benefit of the citizens or subjects, and that the rights of the state are measured solely with reference to the needs and benefits of such subject or citizen. In this case the abstract right of the state in any instance is predicated upon the concrete rights of the individual subjects and citizens. In this sense the following passage from Westlake's International Law is clear and correct: “We further see by reference to our common experience that a state proper is an ideal body, which on the one hand has a certain territory, and on the other hand is a society composed of individual men as its members and having a corporate will distinct from the wills of its members. And a like reflection will show us since the individual men associated in the state are moral beings, and the action of the state which they form by their association is their action, the state must also be a moral being, having a responsibility and conscience which are the summation of the responsibilities and consciences of its members. In this character of a moral being, having a corporate will, responsibility and conscience, a state is capable of being a subject of law and having rights.” (Part I, p. 3.)

38 See the following boundary cases in which the principles of international law were applied, and correctly, to the solution of the difficulty: Foster and Elam v. Neilson (1829), 2 Pet. 253, in which the court rightly followed the decision of the political department in its representative capacity; U.S. v. Texas (1892), 143 U. S. 621; Rhode Island v. Mass. (1838), 12 Pet. 657, and same case at later period (1846), 7 How.491; Indiana v. Kentucky (1890), 136 U.S. 479; Virginia v.Tennessee (1892), 148 U. S. 503.

As an admirable exposition of the way in which private rights arise and are regulated by the principles of international law, see the elaborate and careful opinion of Chief Justice Shaw in Commonwealth v. Blodgett (1846), 12 Met. 56.

39 The prevalent idea that a personal sovereign has greater rights than a president or chairman of the political corporation may be put down as a popular fallacy or as a remnant of the defunct theory of divine right. A state sues as a state, a political corporation, whether the chairman for the time being happens to be czar, emperor, king, or president. See the following cases from among the many that might be cited: Republic of Honduras v. Soto (1889), 112 N. Y. 310; the Sapphire (1870), 11 Wall. 164.

See to same effect Westlake's International Law; Part I, p. 3.

40 The Province, etc., vol. i, p. 219.

41 The language of our own Supreme Court is in point: “Sections 4062,4063, 4064 and 4065 were originally sections 25, 26, 27 and 28 of the Crimes Act of April 30, 1790, c. 9, 1 Stat. 118; and these were drawn from the statute of Anne, c. 12, which was declaratory of the law of nations, which Lord Mansfield observed in Heathfield v. Chilton, 4 Burrow,2015,2016, didnot intend to alter andcouldnot alter.” Per Fuller, C. J., in re: Baiz (1889), 135 U. S. 403, 420.

42 Wait's Am. St. Pap., i, 30; Am. State Papers For. Rel. i, 150; 1 Moore's International Law Digest, 10.

43 (1871) 14 Wall. 170.

44 A rather amusing instance of the extent to which international law is part of the municipal law of the United States, consequently of each state and territory of the Union, was afforded by the recent Gurney-Phelps incident, in which a municipal ordinance of Massachusetts, on the subject of speeding in public thoroughfares, yielded to the claim of diplomatic immunity as sanctioned by international law.

45 It may be well to note the following statement from Sir Robert Phillimore: “Most, if not all, civilized countries have incorporated into their own municipal law a recognition of the principles of international law.

“The United States of North America, almost contemporaneously with the assertion of their independence, and the new empire of Brazil, in 1820, proclaimed their national adherence to international law; in England it has always been considered as a part of the law of the land.” (Commentaries on International Law, vol. i, p. 78.)

46 Lectures, vol. ii, p. 594.

47 See Sir Edward S. Creasy's First Platform of International Law, pp. 65-76. As a trained lawyer and one-time Chief Justice of Ceylon, his opinion should carry great weight.

48 Salmond's Jurisprudence or the Theory of the Law, p. 14.

“ It may be asked accordingly,” saya Sir Travers Twiss, “what are the physical sanctions to the rules which regulate the intercourse of nations? It was one of the main objects of the system of Grotius to supply an answer to this question. The right of war, purum piumque duellum according to the formula of the Roman fecials furnishes the principle. ‘War’ said the great Athenian orator in the declining days of Athens, ‘is the mode of proceeding against those who cannot be restrained by a judicial proceeding; for judicial proceedings are of force against those who are sensible of their inability to oppose them, but against those who are or think themselves of equal strength, war is the proceeding; yet this too, in order that it may be justified, must be carried on with no less scrupulous care than a judicial proceeding. * * * The rules of conduct which govern the intercourse of nations are not improperly considered to form a body of law, strictly speaking, as they have have physical sanctions of no ordinary character in the consequences of war. The ruins of Sebastopol [Port Arthur?] bear convincing testimony that this is not a fiction of jurists, but a stern reality of international life.” (Law of Nations; Rights and Duties of Nations in Time of Peace pp. vii-ix.)

Inasmuch as Sir Travers Twiss spent a lifetime at the bar as a successful practitioner in international questions, his opinion has a peculiar technical value.

49 By way of an apology for refuting Austin's views, Mr. Westlake, perhaps the leading international lawyer of the English-speaking world, says: “It is also necessary because of the dominant position which certain views of John Austin have held in English universities. * * * That eminent thinker rendered great service by elucidating the various elements, psychological states and states of fact, which have to be provided for by the law of a country, and the knowledge which makes up the larger part of what in the English universities is called jurisprudence. But he prefaced his system by analyzing the law of a country into commands addressed by a sovereign to subjects, including in his description of the sovereign all those who participate in the supreme authority. And the definition of the law of a country which resulted from that analysis he gave as the definition of law, so that international law, not being set by an Austinian sovereign to Austinian subjects, was in his view not law at all, but what he called positive international morality. Now this was beside the mark of what followed in his own lectures. In elucidating the elements with which the law of a country must be concerned Austin found no use for his definition of law, perhaps it was impossible to find any; and thus we are fortunately able to retain most of the fruits of his labor, unaffected by the doubt which has at last arisen about that definition.” (Westlake's Principles of International Law, pp. vi-vii.)

And again: “ Whatever merit Austin's analysis may have for the law of a country his treatment of international matters appears to be inadequate, as, notwithstanding his great ability, it well may have been from his not having given them much attention.” (Op. cit. p. viii.)

And finally: “We shall probably feel less surprise that the revolt against that [Austin's] nomenclature has now become so general than that a writer of such great ability should have adopted it, and that it should have reigned so long in the legal literature of England.” (Op. cit. pp. 11-12.)

That mature reflection has only strengthened Professor Westlake in his opposition to Austin's views, see International Law, Part I, pp. 5–9 (1904).

50 Excell. of Civ. Law, p. 99, et seq.; Vatt. i, 283—ii, 53, 70.

51 Richard Wildman'e Institute of International Law, vol. i; pp. 31–32.