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and so doing admit the

broad principle of Terri

torial So

vereignty.

Let it be that Private International Law is "mere comity:" herein it enjoys the fate, in effect, of all law; and the Comity of Nations expresses the universal sense of inter-state obligation. The common lawyer ever conservative of fiction, whether it be of exterritoriality, of a kingdom of Spain in London city, or of vessels which ride and lie at anchor in Parochiâ Sanctae Mariae de Bow', may salve his conscience with the faith that in the very yielding to the foreign rule he exercises his power of independent self-government': his yielding none the less may evidence international obligation: he yields in accordance with the international conscience of civilised state-members, and he yields to a single broad principle, the principle of Territorial Sovereignty, Territorial Sovereignty recognised in others as well as in himself.

1 Exton, Maritime Dicaeologie, p. 53.

2 Sir W. Scott in Dalrymple v. Dalrymple, Dods. p. 6.

46

Being entertained in an English Court, it (the cause) must be adjudicated according to the principles of English law, applicable to such a case. But the only principle applicable to such a case by the law of England, is, that the validity of Miss Gordon's marriage rights must be tried by reference to the law of the country where, if they exist at all, they had their origin. Having furnished this principle, the law of England withdraws altogether, and leaves the legal question to the exclusive judgment of the law of Scotland."

CHAPTER III.

SKETCH OF INTERNATIONAL RELATIONS Before Grotius.

The Growth of Territorial Sovereignty.

each

modern times:

NOT always indeed has International Law been capable Territorial Sovereignof such trite description. International Law, as a fact, ty being the embodiment of State practice, may date from growth of the birth-time of States, or from the time when State became aware of its own corporate existence, and prepared to accord recognition to the same quality in the case of others.

But International Law as matter of scientific appreciation, resting upon Territorial Sovereignty, dates from the Peace of Westphalia, 1648.

lisation

of belongs to the period

That peace set the final seal on the disintegration of its comthe World-Empire at once of Pope and Emperor, and plete reamade possible the complete realisation of the doctrine Grotius, the doctrine of the Sovereignty of States. The subsePeace of Westphalia did not create International Law, but quent to it made a true science of International Law realisable.

the Peace of Westphalia,

of Nations anterior to

the Peace

of Westphalia.

Amongst the peoples of antiquity the existence of a 1648. Law of Nations might have been possible ere the rise of The Law the World-Empire of Rome had reduced into subjection the nations of the earth. But from the days of the Caesars to the Peace of Westphalia a World-Empire not only continued in theory, but also to some small degree in practice. From 1648 to 1806 the shadow of the old Empire remained, but that too disappeared before the assumption by the Corsican Bonaparte of the title of the Teuton Karl.

The first International Law was Law Universal, rule of conduct observed by all men, by men as men acting in accordance with the dictates of certain moral feelings implanted in them by Nature or by God. The Greek in

times most remote recognised τὰ πάντων ἀνθρώπων Kim vóμipa; the Roman even, while yet he bowed to a king, bowed also to the sway of Jus Gentium which was Jus Naturale, and Eastern despots obeyed the same all pervading law.

International Law

Greeks.

The Hel

lene and

the Bar

International Law so apprehended was rude and primitive enough. It might in its earliest stages justify the wildest torture of Iroquois or of Aztec, of Druid or of Moloch priest; it could crucify the invading sovereign', or insult a fallen Hector.

But when, beside the vague and fleeting World Law, the law of all humanity, was recognised a law special to certain peoples, when the distinction was drawn between the progressive and the stationary, between civilisation and barbarity, when the Greek noted тà vóμiμa tŵv Ελλήνων, and the Roman felt the ties of a particular Jus Fetiale and a particular Jus Belli, International Law cast off its swaddling bands, and began its walk on earth.

The Greeks followed a few customary observances with among the regard to foreign states, and the broad distinction between Hellene and Barbarian' may be regarded as marking the recognition of a common interpolitical bond and of a primitive international circle, while the Sacred Truce of Olympia was an early Truce of God'. The Hellenes, like their neighbours, and like most half-civilised peoples, attached high sanctity to the tie of hospitality, and the noble institution of the Xenia, extended from the mutual relations of private individuals to the public reception of

barian:
The

Sacred
Truce:

The

Xenia:

1 Thục. I. 110.

2 Ibid. 1. 3: Ib. 1. 118.

3 Thirlwall, 1. p. 441.

4 Themistocles in virtue of the hearth-tie was received and protected by his enemy, Admetus, king of the Molossians; Thuc. 1. 136, 137.

representatives of States, was a prototype of the consulates of modern times'.

The Amphiktionic Council, which has been by some The Amerected into a board of international arbitration after the phiktiony: model of the Kantian scheme, was in reality a religious, not a political, assembly, but nevertheless did operate as a symbol of international good fellowship, and to a certain degree as an active international agent. An Amphiktiony was in essentials a confederation of neighbouring states for the protection of some common temple and its worship, and to the providing of that protection were mainly directed the terms of the Delphic Amphiktionic oath3. True that oath went on to prohibit the utter destruction of an Amphiktionic town, and the cutting off of the watersupply of a besieged city; but this early attempt at a restraint of mutual violence was more necessary than effectual. When the Amphiktionic league of Delphi was active in lay matters, it worked rather as the engine of encroaching Macedon than as a Court of equity.

66

"A review," says Thirlwall, "of the history of the "council shows that it was almost powerless for good, "except perhaps as a passive instrument, and that it was "only active for purposes which were either unimportant "or pernicious. In the great national struggles it lent "no strength to the common cause; but it now and then threw a shade of sanctity over plans of ambition and "revenge. It sometimes assumed a jurisdiction uncertain "in its limits, over its members; but it seldom had the "power of executing its sentences, and commonly com"mitted them to the party most interested in exacting the "penalty. Thus it punished the Dolopes of Scyrus for "piracy, by the hands of the Athenians who coveted their "island. But its most legitimate sphere of action lay

1 Thuc. 1. 13; Ib. 11. 29: Arnold's Thucydides, 1. 221 n.

2 Freeman, Fed. Gov.: Thuc. 1. 112.

3 The Athenians, having fortified the temple at Delium, were held by the Baotians to have thereby outraged τὰ νόμιμα τῶν Ἑλλήνων, and the restoration of their slain was refused until its evacuation: Thuc. IV. 97.

never

"in cases where the honour and safety of the Delphic "sanctuary were concerned; and in these it might safely "reckon on general cooperation from all the Greeks." Thirlwall, Vol. I. pp. 435–436. Greek notions of international right were The Greek peculiarly liberal. The Greek coastmen and islanders, pirates: like our own Saxon ancestors and the Scandinavian Vikings, at first regularly practised piracy and held it no disgrace'. Hellenic maritime history begins with Mare Clausum. Minos, the first lord of the sea, obtained his title to supremacy by ridding the seas of pirates'. The Greek built his city back from the sea as some prevention against piratical surprises3. So late as the days of Thucydides the Ozolian Locrians, the Ætolians, and the Acarnanians habitually plundered and raided the neighbouring lands, while the Carians and Phoenicians across the ocean were practised pirates. Atalanta was fortified by the Athenians in 431 B.C. as a check on the piracy of the Locrians.

The Ambassador:

The
Herald

The legatine character was by the Greeks commonly respected, and the slaughter by the Athenians and Spartans of the envoys of Persia was clearly an admitted breach of custom, intended, as it would appear, rather to proclaim in the clearest fashion the character of the struggle upon which the culprits were prepared to enter, than to express the Greek view of international obligation. And Xerxes, at all events, bowed to higher law, when, refusing the proffered retribution of the Greeks, he declined to transgress "the laws of all mankind"."

Even in the midst of war the herald" and the trophy' were inviolate, and truces were fairly observed. But the Trophy: Greek temper too often got the better of rule. For the

and the

1 Thục. I. 5.

2 Ibid. 1. 4: Ib. 1. 8: cf. Herod. 1. 171.

3 Ibid. 1. 7.

4 Ibid. 1. 5: Ib. 1. 8: 11. 32.

5 Herod. vIII. 136; cf. Thuc. 1. 67.

6 Thục. II. 12; III. 24.

7 Ibid. 1. 29; 1. 54; 1. 105; 11. 22; 11. 79; 11. 84.

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