indispensability of the latter, which I have previously pointed out, to any lasting external relations whatever.

55

As a substantive, sovereign is a term expressing the relation between part of a given political society, or state, and the remainder: it indicates, to use Austin's definition 56, "the person or persons to whom the generality or bulk of the members habitual obedience." If that person or persons do not pay habitual obedience to any other individual or body (and if, of course, the other members of the state do not pay such obedience), the whole state is said to be sovereign (adjective), or (a much better term) independent.

pay

Now, external independence, which is a matter, as has been said, of fact and practice, has its degrees: and, while this, amongst other external relations, can scarcely be predicated at all of an association which has no internal depositary of general authority, yet a state, which has such a depositary -perfectly sovereign over his own subjects-may well be under admitted and permanent control in its foreign relations. With such cases, it seems to depend upon the particular points, in which external control is exercised, whether the body of men habitually submitting to it, although through an intermediate governor of their own, ought properly to be called an individual state at all, or the portion of a larger state formed by themselves and the authority which they obey 57.

In the further case, where a government has been limited in the internal matters of legislation and judicature over its own subjects, the state has been called half-sovereign 5, but the expression is scarcely a correct one, the internal govern

55 Above p. 158, 160.

57 See Austin 6. pp. 240, 258.

56 Austin 6. p. 241.

58 See Martens' Droit des Gens (Ed. Vergé) § 20. Heffter (Völker-recht § 19) seems to consider limitation in external relations the characteristic of the same states.

ment indicated in the term sovereign being really exercised by an external power59: the states too themselves, for which the term was devised, have now mostly ceased to exist. Indeed, the term sovereignty altogether, as used to express external independence of a state, is going out of use. And the only further notice which I shall take of the subject, is to point out some ambiguities which arise from the double meaning of the similar term summa potestas and summum imperium in Grotius.

One criterion of a 'public war'—that it must be waged by him who holds the highest power in a state leads Grotius to enquire what that power is. A state he defines to be

a complete or perfect assemblage of free men, associated for the enjoyment of justice and for common advantage 62" Perfect apparently means that the assemblage must not be under the power of another, and so really part of a larger association 63. That is, the definition of a state already includes independence.

The question whether a war is publicum or not depends. on its commencement by the summa potestas, i.e. internal sovereign, or an inferior magistrate. And yet, in another point of the same argument, summa potestas also means power uncontrolled ab extra, and is in fact predicated of the whole state 65.

66

Austin's criticism of the passage last referred to turns upon the allegation that the exclusively negative side of sovereignty', as not subordinate to other human authority, is all that Grotius includes in his definition of summa potestas,

59 See Austin's criticism, Lect. 6. pp. 258-261.

60 Martens 1.c. and Vergé's note.

61 De Jure Belli ac Pacis 1. 3. 4. 1.

62 Ib. 1. 1. 14. 1. cited above p. 153, note 23.

63 Ib. 1. 3. 7. 2.

65 Ib. 1. 3. 7. 1.

64 Ib. 1. 3. 5. 1.

66 Austin 6. p.

241..

para

That this is not the case may be seen at once from the last graph of the section in question 67. Grotius' fault really lies in the confusion, under the same term, of internal authority and external independence, which, though as I believe practically connected, are logically distinct and should be designated by different names.

67 Subjectum ergo commune summae potestatis esto civitas...subjectum proprium est persona una pluresve... πрúτη ȧpxǹ apud Galenum &c.

CHAPTER XV.

LAW AS BETWEEN STATES.

In the case of national, or, in the wider Roman sense1, civil law-i. e. the rules of conduct obtaining between members of one nation, state, or political society—I have endeavoured to shew the necessity of recognising, as ultimate sanction, the general disapproval of the society and its consequences. A similar general disapproval is of primary importance in the law which I shall now briefly consider, of which it constitutes the only proper sanction.

International Law may be briefly defined as the aggregate of rules which habitually regulate the conduct of civilised nations, or states, towards one another. It is a matter of fact and practice and, as such, to be at once distinguished from the principles of justice which ought to regulate the mutual relations of nations in the opinion of this or that authority. Nor, on the other hand, should we limit a definition, which is to include all rules really efficient, by requiring an express acknowledgement on the part of states, Christian or otherwise1.

1 Above ch. 14. p. 173.

2 This is very nearly the definition of Halleck (International Law ch. 2. § 1). “The rules of conduct regulating the intercourse of states.”

3 See Wheaton, Elements Pt. 1. Ch. 1. § 1. It is true, however, that Wheaton is there speaking of the authority from which International Law is derived.

"The

4 Woolsey, Introduction to the Study of International Law. § 5. aggregate of the rules which Christian States acknowledge as obligatory in

C. J.

12

Again, it is historically true that the actual rules at present existing on this subject have been mainly, if not entirely, developed among Christian states: but it seems to be simply a matter of general policy and expediency, independent of religious belief, whether non-Christian states adopt these rules or not. I therefore prefer the term civilised, if any adjective at all be needed. It does not really add any distinctness to the definition: for I shall not attempt to define civilisation, beyond the fact that, for the present purpose, adoption of the existing rules would be taken as prima facie evidence of it.

International law ancient and modern. International law is mainly a matter of modern times, but a few remarks are necessary upon the slight traces of similar matter which we find in antiquity, if only to explain occasional expressions of modern writers.

Amphictionies. The Greek Amphictionies, of which there were many, were very early associations of small tribes for religious purposes. Their history bears rather upon the origin and developement of a state, than upon the relations of fully developed states to one another. The special obligations entered into by the Neighbours, dwelling round some central temple', under religious sanctions backed by very serious secular penalties, were recorded and appealed to in

their relations to each other and to each other's subjects." Bluntschli requires recognition, Anerkennung, but this need, I think, only be virtual. (Das moderne Völkerrecht 1. 1. cf. note 1. "Bewährung im Völkerleben"). Calvo (Droit International 1. 1. 1.) understands, by International Law, la réunion des règles de conduite observées par les diverses nations dans leurs relations entre elles.

5 See Woolsey 1.c. and Bluntschli 1. §§ 5, 6. Story and Vattel speak of "Civilised nations” in this regard. See Halleck (Int. Law 2. §§ 8. 9). 6 Grote History of Greece, Pt. 2. ch. 2.

7 άupikтloves, Umwohner. Curtius Grundz. 157.

8 Aeschines de falsa legatione, p. 279.