it has come about that international relations have become highly complicated and furnish many opportunities for inter-state friction and discord. In order to reduce this friction and possibility of strife to a minimum the statesmen and publicists of all nations have sought to render as definite, and, in their operation, as reciprocally beneficial, as possible the rules and principles that are to be commonly recognized as determining the rights and duties arising out of the inter-relations into which, in modern times, the different States of the world and their citizens are brought.

When disputes have arisen, the effort has been to provide orderly and equitable modes for the settlement; and, finally, when these have failed and war, the ultima ratio, has been resorted to, the attempt has been made to establish rules for the conduct of warfare which will limit its horrors to the combatants, and to minimize its devastating effects upon non-combatants. In almost all wars the interests of neutral States become necessarily involved, and, for the determination of the reciprocal rights and responsibilities thus created, another large body of rules and principles has been evolved.

The total result thus is that, though starting from an essentially individualistic doctrine of State exclusiveness and independence, a great and complicated corpus of technical international principles has come into being. It still remains true, however, that the doctrines of exclusive territorial jurisdiction which have been outlined, and of the State as an international entity or person which is the bearer or "subject" of certain rights and corresponding duties, are the fundamental concepts, from which, by logical deduction, are explained and justified the special rules which regulate international relations. The more complicated and technical these provisions of interna

tional law, the more important it becomes that the basic ideas upon which they rest should be searched out and clarified.

Municipal and International Jurisprudential Concepts Distinguished. Leaving the domain of municipal life, and entering the field of international law, one finds the principles which regulate the relations of States inter se approximately as definite and as formalistic in character as are those which constitute the body of municipal law. Moreover, they are, in general, amenable to much the same analysis as that applicable to municipal law. Furthermore, the concepts that they connote, such as rights, obligations and the like, seem much the same. When, however, we subject these ideas to careful scrutiny, we find, in fact, that we have to deal with principles and concepts which have only a superficial or analogous resemblance to those of municipal law,-that, fundamentally, there is a difference between these two fields of jurisprudence which makes necessary the formation of new definitions of law, of legal rights, and of legal obligations, and a new conception of the State as the subject and object of these rights and obligations.

When we forsake the field of constitutional or municipal law and enter that of international relations we no longer have to deal with legal superiors and legal inferiors. Here we find no supreme will, but, legally speaking, a collection of equal wills, and the conflict, or at least the interplay, of independent powers. This is the fundamental premise of those who attempt the systematic statement of the principles which govern the relations of States to one another. It is true that the more developed and civilized States of the world are spoken of as forming a "Family of Nations," and that from this fact it is quite proper to argue that ubi societas, ibi jus est. But the jus which is thus brought into being has not the

same essential character as has that of municipal life. Especially is this shown in the origin of International Law, although the manner in which it is determined and enforced is not without significance.

As regards their origin, the laws governing international relations do not find their birth in the mandatory utterances of supreme wills declaring to inferior persons what for them shall be deemed legally right and legally wrong. Instead, they derive their force from the fact that they have been accepted by those political persons -the States-whose actions they regulate. This acceptance may, indeed, be one which, for the most part, the States may not find it practicable to avoid, even should they so desire, and thus, in fact the rules of international intercourse may, arguendo, be admitted to be as definite, and, in general, as uniformly conformed to as are the provisions of the municipal law of the most orderly State. This, however, does not change the essential character of those international laws as rules which obtain between equals rather than as commands addressed by a superior legislative will to persons who are conceived of as subject to its control.

It would plainly appear, then, that the idea of Sovereignty, as it is found in constitutional law, can find no proper place among international conceptions. The word is, indeed, generally used in the literature of international jurisprudence, but, when thus employed, it has a meaning which is so different from that which it has in the municipal field that it is most unfortunate that it should ever have obtained this currency. It would have been far better if some such term as Independency had been employed. This word, far better than Sovereignty, would indicate the fact that, regarded from the point of view of positive law, complete individualism prevails in the international field. Socially, economically

and morally there may be a family of nations,—a societas maxima,-but, looked at from the point of view of the constitutional jurist, international life is atomistic, noncivic, individualistic. Thus regarded, nations are, as individuals, in that "state of nature" in which Hobbes, Locke, Rousseau, and the other natural law writers placed primitive man. Even when, by formal treaties, independent States have established rules by which, with reference to the matters specified, their future dealings with one another are to be regulated, there has been no creation of law in a positive or Austinian sense, for, as to those matters, the contracting parties remain subject only to their own wills and not to that of an outside or foreign power. As Jellinek briefly puts it: "Der Staatenvertrag bindet aber er unterwirft nicht." 1

The Relation Between International Law and Munici

pal Law. So independent and inherently diverse in character are international and municipal laws, it is not possible for the one to be created by the other; international law cannot be created by municipal law, and municipal law cannot owe its origin to international law. The two systems are, however, often brought into such close factual relations that the absence of this causal nexus is not always evident, and it is therefore necessary to justify somewhat more fully the truth of the proposition that has been stated.

Municipal Law Cannot Create International Law. That no one State can, by its own legislative fiat or judicial decree create international rules that are to bind the actions of other States is generally admitted. That such municipal acts may often have a strongly persuasive international force is granted, but that they may be determinative of the rights of other States is never conceded. It may, indeed, be pointed out that, were the 'Gesetz und Verordnung, p. 205.

doctrine once established that municipal law could create international law, the doom of international law as a fixed and generally binding body of principles would be at once pronounced. For not only would it thus be within the recognized right of each State to escape from the application of previously acknowledged rules of international law, but that law itself would lose its generality and have a content that would vary for each State.

So appropriate upon this point is the language of the Supreme Court of the United States in the case of The Scotia that, though it may be superogatory, it will be quoted. Mr. Justice Swayne, who rendered the decision, was speaking of the maritime law, but the doctrine is applicable to general international law. "Undoubtedly," he says, "no single nation can change the law of the sea. That law is of universal obligation, and no statute of one or two nations can create obligations for the world. Like all the laws of nature, it rests upon the common consent of civilized communities. It is of force, not because it was prescribed by any superior power, but because it has been generally accepted as a rule of conduct."

International Law Cannot Create Municipal Law. That international law cannot create municipal law is not so generally admitted. Indeed, probably the greater number of writers assert that it has this force. In support of this contention attention is called to the many declarations of the national courts of almost all civilized States that international law is a part of the municipal law which they are called upon to apply when the rights of litigants before them are therein involved.

It is true that courts adopt and apply established principles of international law, but, in so applying and enforcing them, they consider them as having been first

14 Wallace 170 (1871).