In entering upon the publication of a new journal, professedly designed not only to advance the knowledge of, but also to improve, the principles of international law, it is not inappropriate to make an estimate of the present state of the system and to consider its future needs.

In Part First of these notes the nature of sovereignty was discussed and its manifestations in a single state and a federal state considered. It is now proposed to carry the investigation further, and to see the effect of viewing sovereignty from standpoints internal and external to the state. Having completed this examination, the subjects of independence, civil liberty, state liberty, constitutions, and law in their relation to sovereignty will be briefly treated.

The recent report on Citizenship of the United States, Expatriation, and Protection Abroad, together with the work of Mr. Van Dyne on Citizenship of the United States, and the invaluable Digest of International Law, by Prof. John Bassett Moore, render easily accessible and readily comprehensible the principles of the American law with reference to the status of our citizens and of aliens for the time being within our territorial limits. At the same time, however, these publications make more evident the fact that, in many instances, the conflicting claims of two or more states upon the same individual are settled rather by mutual concessions than upon principle; that legal and political rights are asserted, but with an understanding, more or less explicit, that under given circumstances they will not be exercised. Thus, by a legislative act, legally binding upon our executive and judicial officers, we have declared the right of the individual to expatriate himself to be an absolute and indefeasible one, and that the naturalized American citizen is to have the same rights and is to receive the same protection as the native-born citizen, whether or not the state of original allegiance consents to the expatriation thus involved. In practice, this law, thus formally declared, has never been rigidly enforced, for the very good reason that to attempt to do so would lead to constant and serious international difficulties.

International law owes much to American judges and to American jurists. The list of those who have contributed to its advancement is not short and includes the names of Marshall, Story and Field, Kent, Wheaton, with his able commentators, Dana and Lawrence, Halleck and Lieber and, among recent writer’s, Taylor, Moore and Snow. Although his name is not connected with a general treatise on the subject of public international law, it may be doubted whether any of his fellow-workers in that field have rendered a more important service to humanity and to international good neighborhood, than has Dr. Francis Lieber in his memorable “Instructions for the Government of the Armies of the United States in the Field.”

The power to make treaties with other nations is an inherent attribute of the sovereign power of an independent nation.

Where the treaty-making power is exercised by the sovereign power of a nation, the right to treat with other nations rests wholly in sovereignty and extends to every question pertaining to international relations.

Where, however, the treaty-making power is not exercised by the sovereign power of the nation as a whole, but has been delegated to a branch of the government by which it is exercised in a representative capacity, the treaty-making power there, although it arises from sovereignty, rests in grant, and can be exercised only to the extent of and in accordance with the terms fixed by the grant.

So in the United States, where the people, as the sovereign power, have delegated through the medium of their State conventions or State legislatures the treaty-making power to a designated section of the Federal Government under the Constitution, such power rests in grant and is to be measured and exercised under the terms of such grant.

Through the Hague convention of 1899, for the first time by a general treaty, nations in effect agreed that under certain circumstances, at least, they were morally bound, as were ordinary corporations or mere private individuals, to submit the merits of their disputes to impartial examination. The old doctrine that the king, as the representative of Deity, could do no wrong and the newer fiction that national governments were sovereign—beyond the ordinary gauges of right and wrong—and were their own courts of last resort upon the rightfulness of their actions toward other governments, subject only to the arbitrament of war, were measurably impaired, the signatory nations admitting fallibility and agreeing that, composed as they were of an aggregate of individuals, like their component parts they might err, and that the question as to whether they had erred or not could fairly be determined by other human beings, perhaps no wiser, but certainly more impartial than themselves.

In his address to the First Peace Conference on May 20, 1899, President De Staal remarked:

The name “ Peace Conference,” which the instinct of the peoples, outstripping in this respect the decision taken by the governments, has given to our reunion, well indicates the essential object of our labors. The “ Peace Conference ” cannot fail in the mission incumbent upon it. It must produce from its deliberations a tangible result which the whole of humanity awaits with confidence.

Such was the keynote of the salutation with which doubt and pessimism were greeted upon their arrival at The Hague in 1899. Certainly, in 1907 the nations, after the impressive lessons taught by two terrible wars, whether anxious participants or silent witnesses, have a still more ardent desire for permanent peace, and the duty owed by the governments to humanity is not less solemn or less evident.

Among the subjects scheduled for discussion at the third Pan-American conference, which met at Rio de Janeiro during July and August, 1906, was a resolution that the second peace conference at the Hague be requested to

The distinctive features of human progress in the nineteenth century were the advancement of natural science, discovery and invention, the growth of human freedom and political liberty, the unifying and nationalization of races into independent states and the development of the principle and the extension of the practice of international arbitration.

This subject is a timely one from the fact that we are on the eve of the meeting of the second international conference at The Hague, the first conference in 1899 having voted that —

The conference expresses the wish that the proposal which contemplates the declaration of the inviolability of private property in naval warfare may be referred to a subsequent conference for consideration.

The present programme for this coming conference includes this question of the immunity of private property as one agreed upon for discussion.

Before entering into a discussion of the subject, it may be well to make a résumé of the historical status of the question up to the present time so far as the United States, Great Britain, and other civilized countries are concerned.