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minion and property, and right to maintain and promote the national welfare, consistently with the similar reciprocal rights of other nations.

To the latter class of particular and occasional relations, belong the ordinary state of peace, and the extraordinary, though too frequent, state of war.

While the reciprocal rights and obligations of nations, arising out of the general, common and permanent juridical relations of nations are observed, and the claims, pretensions, and controversies of nations are settled by compromise, mediation or arbitration, without physical force, or recourse to arms, we contemplate nations in their pacific relations. In this state, the chief juridical relations arise from the capacity or faculty of national intercourse ; which although it does not involve a compulsory right, and is not perpetually in operation, is common to most, if not all nations, and in frequent exercise. And this intercourse among nations, may be either in their corporate and political character, including negotiation, particularly by public ministers, ambassadors, and other political agents, and the conclusion of treaties, binding other nations ; or in their individual capacity, including commercial, and other intercourse among the individuals, of whom the different independent states, are composed.

When for the settlement of claims, disputes and controversies among nations, recourse is had to physical force, we contemplate nations, in their hostile or belligerent relations. And in this state, we have to consider; 1st, the reciprocal rights and obligations of the belligerent nations towards each other, in resorting to, commencing, and carrying on war; 2d, the reciprocal



rights and obligations in relation to each other, of the belligerent and other nations, with whom they are at peace-or neutral nations, with regard to their corporate, or their individual intercourse, but chiefly with regard to the latter ; 3d, the termination of the state of warfare, and restoration of peace.

Part I.



Section First.

Independent Sovereignty and Freedom from Foreign


The independent sovereignty of a nation appears mainly to consist in its immediate power of governing itself, according to its own laws, without the control or interference, in any respect, of any exterior greater or higher potentate on earth, whether in its ordinary legislative, administrative, judicial and executive functions, or in the formation or regulation of its internal institutions and establishments.

A people is either originally free, if it has hitherto recognised no other domination, or it has attained its independence through the cessation of its previous subjection to a higher power. Of the original formation of states, we have no satisfactory historical evidence ; and hence the diversity of opinion on the subject.


Almost all the sovereign nations in modern Europe have acquired their existence in the last mentioned mode.

A free state, which has acquired its independence, in a lawful manner, is entitled, in virtue of the natural equality of nations, to be recognised as such, by others. And in this, usually, no difficulty occurs. But the forcible temporary usurpation of the sovereignty is not sufficient to found independence, and cannot be viewed as altogether justified and lawful, until the former sovereign has voluntarily released from their allegiance, the inhabitants of that part of the national territory, who have withdrawn themselves from their former subjection, or has ultimately recognised their freedom, when compelled by force of arms. If such a nation be previously recognised and treated by other states, as independent, it is a circumstantial question, whether the nation from whom obedience has been withdrawn, be entitled to consider such recognition, as an injury. In general, no state is entitled to set itself up as a judge of the disputes between the government, and the subjects of other states; and to declare the latter released from their former allegiance. At all events, such a recognition, by foreign nations, can in no way be prejudicial in point of right, to the former government, if it shall succeed in reducing the insurgents to obedience; and such recognition can be of avail to the latter, only so long, as they are in a condition to maintain their asserted freedom.



Section Second.

Equality of Nations in point of Right; Conventional and Consuetudinary Precedence in point of Rank.

The independent sovereignty of nations almost necessarily implies and includes their original equality, in reciprocal rights and obligations. In general, no one nation can command another, or call another to account for its actions, or demand a preference or privilege over it. This equality is by no means lost by several nations entering into a joint confederacy. The smallest state is, in point of rightful independence, equal to the greatest sovereign.

In consequence of the complete equality among them, in point of right, it does not appear, that any precedence in point of rank, among independent states, can be deduced from observation of their nature as such. Yet the pride of nations has here sought, by various means, to obtain such a prerogative over others.

The chief occasions on which this appears, are, the personal interviews of the rulers of independent states, as representing the whole nation, conferences of ambassadors, and other political agents, holding a representative character, written correspondence, and treaties, which are drawn up, in the names of several nations. At meetings of a number of individuals, it is no doubt quite natural, that a certain order should be observed, that one should be first, and so forth. But that order cannot conveniently be established and regu. lated, consistently with the preservation of the natural equality, or without the concession of a privilege to one people. And it came to be a question, through whom, and according to what rule of preference, should this precedence of rank be determined.

Not content with natural equality, the European nations, because they found not in nature, the gratification of their vanity, had recourse to many adventitious, or accidentally acquired qualities in support of their claims to precedence.* These were in general, the antiquity of their independent empire or realm, the antiquity of their family or house, the priority of their conversion to christianity, the power of a nation, the more excellent form of government, higher worth, or merit and title, illustrious deeds, obligations by treaty of support, protection and tribute, and incomplete sovereignty. But all these accidental qualities of nations merely afford an opportunity and ostensible reason for claiming precedence before others; they give no right. What is merely becoming or suitable, the reason frequently urged on such occasions, belongs not to the domain of the law of nations. These pretended reasons run so often counter to each other, that it is impossible any certain authoritative rules can be founded upon them. Sometimes the form of government may decide ; sometimes, if it is changed, possession or power. And every state has at least, one of these qualities to exhibit.

In the absence, therefore of any rules furnished by

* Günther Europäisches Völkerrecht. Erst. Buch, Cap. III. S. 198, &c.

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