1 instance, conflicting with the freedom of the high seas, or prohibiting the innocent passage of foreign merchantmen through its maritime belt, or refusing justice to foreign residents with regard to injuries committed on its territory to their lives, liberty, and property by its own citizens. If a State does nevertheless possess such rules of Municipal Law as it is prohibited from having by the Law of Nations, or if it does not possess such municipal rules as it is compelled to have by the Law of Nations, it violates an international legal duty; but its courts 1 cannot by themselves alter the Municipal Law to meet the requirements of the Law of Nations. § 23. However, although municipal courts must Presumpapply Municipal Law even if conflicting with the Law against of Nations, there is a presumption against the existence Conflicts of such a conflict. As the Law of Nations is based upon Interthe common consent of the different States, it is improb- and Muniable that a civilised State would intentionally enact a cipal Law. rule conflicting with the Law of Nations. A part of Municipal Law, which ostensibly seems to conflict with the Law of Nations, must, therefore, if possible, always be so interpreted as essentially not containing such conflict. tion between national tion of necessary Rules. § 24. In case of a gap in the statutes of a civilised PresumpState regarding certain rules necessitated by the Law Existence of Nations, such rules ought to be presumed by the of certain courts to have been tacitly adopted by such Muni- Municipal cipal Law. It may be taken for granted that a State which is a member of the Family of Nations does not intentionally want its Municipal Law to be deficient in such rules. If, for instance, the Municipal Law of a State does not by a statute grant the necessary privileges to diplomatic envoys, the courts ought to presume that such privileges are tacitly granted. 1 This became quite apparent in the Moray Firth case (Mortensen v. Peters)-see below, § 192-in which the court had to apply British Presumption of the Municipal con formity with Rights by the Law of § 25. There is no doubt that a State need not make Existence use of all the rights it has by the Law of Nations, and of certain that, consequently, every State can by its laws expressly Rules in renounce the whole or partial use of such rights, provided always it is ready to fulfil such duties, if any, as are connected with these rights. However, when no granted such renunciation has taken place, municipal courts ought, in case the interests of justice demand it, to presume that their sovereign has tacitly consented to make use of such rights. If, for instance, the Municipal Law of a State does not by a statute extend its jurisdiction over its maritime belt, its courts ought to presume that, since by the Law of Nations the jurisdiction of a State does extend over its maritime belt, their sovereign has tacitly consented to that wider range of its jurisdiction. A remarkable case illustrating this happened in this country in 1876. The German vessel Franconia, while passing through the British maritime belt within three miles of Dover, negligently ran into the British vessel Strathclyde, and sank her. As a passenger on board the latter was thereby drowned, the commander of the Franconia, the German Keyn, was indicted at the Central Criminal Court and found guilty of manslaughter. The Court for Crown Cases Reserved, however, to which the Central Criminal Court referred the question of jurisdiction, held by a majority of one judge that, according to the law of the land, English courts had no jurisdiction over crimes committed in the English maritime belt. Keyn was therefore not punished.1 To provide for future cases of a like kind, Parliament passed, in 1878, the Territorial Waters Jurisdiction Act.2 1 R. v. Keyn, (1876) 2 Ex. D. 63. See Phillimore, i. § 1986; Maine, pp. 39-45; Stephen, History of the Criminal Law of England (1883), vol. ii. pp. 29-42. See also below, § 189, where the controversy is discussed whether a littoral State has jurisdiction over foreign vessels that merely pass through its maritime belt. 241 & 42 Vict. c. 73. V DOMINION OF THE LAW OF NATIONS Lawrence, § 44-Phillimore, i. §§ 27-33-Twiss, i. § 62-Taylor, §§ 60-64Westlake, i. p. 40-Bluntschli, §§ 1-16-Heffter, § 7-Holtzendorff in Holtzendorf, i. pp. 13-18-Nys, i. pp. 121-137-Rivier, i. § 1-Bonfils, Nos. 40-44-Despagnet, Nos. 51-53—Martens, i. § 41-Fiore, Code, Nos. 43-48-Ullmann, § 10-Heilborn, Grundbegriffe des Völkerrechts (1912), 10-12-Praag, Nos. 4-5-Nippold in Z. V., ii. (1908), pp. 441-443Cavaglieri in R.G., xviii. (1911), pp. 259-292. Dominion Law con § 26. Dominion of the Law of Nations is the name Range of given to the area within which International Law is applicable-that is, those States between which Inter- national national Law finds validity. The range of the dominion troversial. of the Law of Nations is controversial, two extreme opinions concerning this dominion being opposed. Some publicists 1 maintain that the dominion of the Law of Nations extends as far as humanity itself, that every State, whether Christian or non-Christian, civilised or uncivilised, is a subject of International Law. On the other hand, several jurists 2 teach that the dominion of the Law of Nations extends only as far as Christian civilisation, and that Christian States only are subjects of International Law. Neither of these opinions would seem to be in conformity with the facts of the present international life and the basis of the Law of Nations. There is no doubt that the Law of Nations is a product of Christian civilisation. It originally arose between the States of Christendom only, and for hundreds of years was confined to these States. Between Christian and Mohammedan nations a condition of perpetual enmity prevailed in former centuries. And no constant intercourse existed in former times between Christian and Buddhistic States. But from about the 1 See, for instance, Bluntschli, § 8, and Fiore, Code, No. 43. beginning of the nineteenth century matters gradually changed. A condition of perpetual enmity between whole groups of nations exists no longer either in theory or in practice. And although there is still a broad and deep gulf between Christian civilisation and others, many interests, which knit Christian States together, knit likewise some non-Christian and Christian States. § 27. Thus the membership of the Family of Nations has of late necessarily been increased, and the range of Member the dominion of the Law of Nations has extended ship of the Family of beyond its original limits. This extension has taken Three Condi tions of Nations. place in conformity with the basis of the Law of Nations. As this basis is the common consent of the civilised States, there are three conditions for the admission of new members into the circle of the Family of Nations. A State to be admitted must, first, be a civilised State which is in constant intercourse with members of the Family of Nations. Such State must, secondly, expressly or tacitly consent to be bound for its future international conduct by the rules of International Law. And, thirdly, those States which have hitherto formed the Family of Nations must expressly or tacitly consent to the reception of the new member. The last two conditions are so obvious that they need no comment. Regarding the first condition, however, it must be emphasised that not particularly Christian civilisation, but civilisation of such kind only is conditioned as to enable the State concerned and its subjects to understand, and to act in conformity with, the principles of the Law of Nations. These principles cannot be applied to a State which is not able to apply them on its own part to other States. On the other hand, they can well be applied to a State which is able and willing to apply them to other States, provided a constant intercourse has grown up between it and other States. The fact is that the Christian States have been of late compelled by pressing circumstances to receive several non-Christian States into the community of States which are subjects of International Law. Range of § 28. The present range of the dominion of Inter- Present national Law is a product of historical development, Dominion within which epochs are distinguishable, marked by of the successive entrances of various States into the Family Nations. of Nations. (1) The old Christian States of Western Europe are the original members of the Family of Nations, because the Law of Nations grew up gradually between them through custom and treaties. Whenever afterwards a new Christian State made its appearance in Europe, it was received into the charmed circle by the old members of the Family of Nations. It is for this reason that this law was in former times frequently called 'European Law of Nations.' But this name has nowadays historical value only, as it has been changed into 'Law of Nations,' or 'International Law' pure and simple. (2) The next group of States which entered into the Family of Nations was the body of Christian States which grew up outside Europe. All the American 1 States which arose out of colonies of European States belong to this group. And it must be emphasised that the United States of America have largely contributed to the growth of the rules of International Law. The two Christian Negro Republics of Liberia in West Africa and of Haiti on the island of San Domingo belong to this group. 1 But it ought not to be maintained that there is-in contradistinction to the European - an American International Law in existence; see, however, Alvarez, Le Droit international américain (1910), and again Alvarez in A.J., iii. (1909), Pp. 269-353. The arguments of Alvarez are refuted by Sá Vianna in his excellent work, De la Non VOL. I. с Existence d'un Droit international Law of |