Page:Encyclopædia Britannica, Ninth Edition, v. 13.djvu/205

INTERNATIONAL LAW justice, the transfer of territory from one sovereignty to another should be with the consent of the people. But this is not yet a recognized rule of international law, although in many recent cases of acquisition of new terri tory a certain amount of deference has been paid to it. In the treaty of Prague (18GG), in the union of the Neapolitan provinces to the kingdom of Italy, and in the union of Savoy and Nice to France, the rights of the inhabitants to decide on the proposed transfers are expressly reserved. A recent and more painful instance is the annexation of the Transvaal by England under an order in council which authorized the measure if it should appear to be agreeable to the legislature or a sufficient portion of the inhabitants. It is now clear that no such assent was given by the people, while the acting Government of the republic firmly protested against the annexation. The territory of a state includes all the lands and inland waters within its boundaries, the mouths of rivers, bays, and estuaries, and the sea to the distance of a marine league along the coast. By a fiction vessels on the high seas, and public vessels everywhere, are treated as part of the territory of the state to which they belong. The high seas are no nation s property, although in the earlier" stages of international law exclusive pretensions have been set up to particular seas, as by Spain to the Pacific, England to the seas around Great Britain, and Russia to the North Pacific. Formal intercourse between nations is carried on under well-ascertained rules. Omitting mere ceremonial regula tions, wa may notice specially the position assigned by the law of nations to ambassadors. These are the highest class of diplomatic agents, and according to the universal modern practice they are permanently attached to the foreign court to which they are accredited. The earlier practice (e.g., before the Reformation) favoured the appointment of special ambassadors for particular business. The office of ambassador, whether permanent or temporary, has at all times been clothed with a character of peculiar sanctity. His privileges during residence at a foreign court may be summed up in the statement that himself, his house, his property, and his household are exempt from the foreign jurisdiction. Like a ship of war in foreign waters, the embassy is exterritorial supposed by fiction of law to be part of the sovereign s dominions. The ambassador there fore is n^t liable to prosecution in the criminal nor to suit in the civil courts. His official residence is free from the local jurisdiction; but it is no longer an asylum, and a criminal taking refuge there may be seized by the local authority if not delivered up by the ambassador. Ambassadors are further relieved from taxation on goods imported for their own use, a privilege which has not unfrequently been abused. An ambassador is entitled to freedom of worship, whether his religion be tolerated by the local government or not. The suite of an ambassador down to his domestic servants are also exempt from the local jurisdiction. *The household may in some respects be likened to a separate community under the sovereignty of the ambassador. But it is only in minor affairs that his power to actually execute criminal justice on his own servants would now be recognized. The proper course for him to adopt in a serious charge would be to send the accused home to be tried. The privileges of an ambassador and his suite, it should be added, apply only so far as they do not act beyond the limits of their legatorial character, e.g., as merchants, trustees, and so on. Exceptional crimes committed by an ambassador do not destroy his character or right-*,- at least according to the general con sensus of modern authorities, although English lawyers have argued "that a crime contra jus gentium destroyed the ambassadorial character. Besides ambassadors, two inferior 193 grades of foreign ministers are recognized, viz., (1) envoys, ministers, or others accredited to sovereigns, and (2) charge s d affaires accredited to ministers charged with foreign affairs. These three grades of diplomatic rank were settled by the congress of Vienna (1815) to avoid the embarrass ment arising from claims of precedence. Consuls are merely local agents of a foreign Government, for certain limited purposes, such as facilitating and recording legal transactions affecting the subjects of the state they represent, and assisting them in obtaining their legal right;. They are appointed with the permission (exequatur) of the country in which they are to act. They have no immunity from local jurisdiction except under special arrangements. In non-Christian countries the consuls representing Christian states have more extensive functions. la Turkey and the Mahometan countries of the Levant they exercise generally an exclusive criminal and civil jurisdic tion over their countrymen. The contracts made by states with each other are in international law treated according to the general principles of the law of contracts (see TREATIES). Under the modern practice rules of private law affecting foreigners are in many cases settled by treaty on the basis of reciprocity, e.g., extradition, copyright, &c. Hitherto we have considered nations as in a state of peace. War introduces an entirely new order of rules, applying either between the belligerents themselves or between the belligerents and neutral states. To the ques tion whether a given war be just or unjust international law has no answer to. give, or only a formal one. Any war undertaken in defence of the rights which have been already described might be called a just, and any war under taken in violation of them might be called an unjust war. The justice or injustice of any war is really a question of morality, arid in proportion as international law has escaped from the merely ethical region it has abandoned the attempt to decide this question. It figures largely in Grotius, as compared with later writers, and more largely in the specu lative than in the positive jurists. One condition of the legality of a war, that of a formal declaration, borrowed from Roman practice by Grotius and some of his followers has ceased to be of any importance, although some publica tion of the fact of war is considered necessary in fairness .to neutrals. But all wars are legal in international law that is, they are governed by the rules of the law of war except wars levied by pirates or piratical communities. The part played by international law has been not to prevent but to regulate warfare. Nations have arrived at a tolerable degree of unanimity as to how wars ought to be conducted, and the result is a certain and progressive law of war. They are far from having arrived at any un derstanding as to the conditions under which war ought to be allowed ; when they are within sight of any such under standing, it will be time enough to talk about a war being just or unjust in international law. The absence of any legal standard of the justice of a war only adds to the importance of the moral question. There being no law of nations to restrain the warlike ambition of nations, as there is to restrain their passions when war has begun, the purely moral restraints become all-important. Among these it might not be worth while to reckon the kind of selfishness which counts the cost of a campaign against a powerful enemy. But a generous horror of war for its own sake may safely be pronounced to be, in spite of recent events, a growing public sentiment, particularly in the English-speaking people of both worlds. There is no English or American statesman who would not at least do lip-service to the principle that an avoidable war is a public crime. Some of them have done more. The great experiment in international arbitration between England XIII. 25