亨利-梅因：国际法Lecture 3

or which may spread from it， are legally immaterial.'

　　This is correct law， and in our day I do not doubt that to most minds it would seem plain that， the condition of Sovereignty being taken for granted， these rights so stated follow. But， as a matter of fact， confining ourselves to this branch of state powers， none have been more violently denied or disputed； and if they were preserved it is far less owing to their logical connection with the definition of state Sovereignty， than from the fact that， from the very first， the position that they exist has been plainly stated by the international lawyers. And the fact that these rights have been preserved is a signal tribute to the importance of International Law. It happens that the long peace which extended from 1815 to 1854 was， both at its beginning and at its end， all but broken up by the denial of these simple rights of which I have been speaking. The pacification of the Continent， after the overthrow of the French Empire， was succeeded by a series of movements instituted by communities for the purpose of obtaining Constitutions； that is， for guarding against being remitted to the same condition of despotic rule in which the French Revolution had found them. All these Constitutions had for their object the limitation of the powers of the King. Perhaps the most democratic of them was the one known as the Spanish Constitution of 1812. When in fact the Spanish Cortes at Cadiz framed this Constitution， Ferdinand， the King of Spain， was in the hands of the French； and therefore the Spanish Constitution-makers had to contemplate a Constitution suitable to a country from which the King would be， perhaps， permanently absent. Naturally， therefore， the powers of the King were in this Constitution reduced to very little. The King of Spain， on his return from imprisonment， denounced this Constitution， but it obtained great favour in certain parts of Europe， and in 1820 the Neapolitans， after a revolution， compelled their King to grant a Constitution which was a copy of it. Much dismay was caused to the Co

ntinental Powers which retained their despotisms， and the Congresses of Laybach and Troppau assembled to consider the danger of the spread of what were then known as 'French principles' from Naples to the rest of Europe. It was finally determined that the Neapolitan Constitution should be modified， and that compulsion should be put on the not very reluctant King by the arms of Austria. Great Britain， however， protested against the decision. Soon afterwards the Constitution of 1812 was adopted after a military rising in Spain itself. This led to the assemblage of the Congress of Verona and to the restoration of the Spanish despotism， the compulsion on this occasion being put upon Spain by France.

　　Before， however， the European peace finally broke up， the current had turned in the other direction； and Great Britain， whose foreign affairs were now directed by Lord Palmerston， employed its influence to assist states which desired to obtain Constitutions. In addition to the desire for popular government the spirit of nationality had now come into play； and the ultimate result was the intervention of Napoleon III in Italy and the destruction of the Italian despotisms. Therefore all the Powers in Europe， during the peace， did in turn act upon principles from which the inference might be drawn that they denied the right of a state under certain circumstances to adopt what political Constitution it pleases； nevertheless this rule of law in the long run prevailed； nor can there be the slightest question that it is of the greatest value. Of all rules of public law it is the one which does most to prevent the whole of the civilised world being brought under an iron-bound theory of government. It enables theories of government to be tested by experiment in several states， and prevents any one of them from overwhelming the rest whether in the name of order or in the name of freedom.

　　I pass now to the second of the rules which I have quoted from Mr. Hall. Every sovereign state is entitled to do， within its dominions， whatever acts it may think calculated to render it prosperous and strong. Two consequences follow from this position. A state may take what measures it pleases for its own defence； and a state may adopt whatever commercial sytstem it thinks most likely to promote its prosperity. That a state has these powers is not now denied， and would not， I think， be disputed； but nevertheless if the existence of these rights had not now for two centuries been affirmed by International Law， I think they would have turned out to be full of pretexts for war. Even at this moment the patience of states is hardly tried by the way in which their neighbours act upon the principle. Take France and Germany. Rarely in the history of the world have there been such achievements of military engineering as are exemplified in the fortresses which line the long border of the two countries. Every one of those fortresses is just as available for attack as for defence； and knowing what men are， it is really wonderful that no complaint has at present been made of the mere fact of their construction. Take again two dependencies of European countries， which are really great countries standing on a footing of their own British India and Asiatic Russia. These are not countries in which fortresses are， or are likely to be， constructed in any large number. The conditions of climate and other difficulties render them defences of no great value； but either Power is engaged at vast outlay in creating a system of railways within its own countries； and we can see even now that any fresh railway constructed within the border of the one country gives rise at least for criticism and private complaint on the part of the other. I do not think we can doubt that if International Law had not been perfectly clear and precise on the subject of these rights， alleged to flow from the Sovereignty of states， they would conduce to every variety of complaint followed by

every variety of war. What really enables states to exercise their Sovereignty in this way is nothing but the legal rule itself.

　　So also with regard to commercial systems. They differ enormously in contiguous communities. There is no question that of old the English Navigation Laws were bitterly disliked by a great part of Europe； and now there is a standing difference between a number of communities on the subject of Free Trade and Protection， and but for the rule affirming the unrestricted right to adopt such commercial system as a country pleases， this difference of economical opinion would undoubtedly be most dangerous. As the law stands， a state may directly and deliberately legislate against the particular industries of another； and so far as we are concerned we have so fully acquiesced in this principle that we allow our colonies to exercise the privileges once grudgingly conceded to independent states， and to exclude our manufactures by prohibitory fiscal provisions.

　　The third of Mr. Hall's rules states theta sovereign state has an unlimited power to occupy unappropriated territory. Here is a very great question， which was the fertile source of quarrel in the seventeenth and eighteenth centuries， and which perhaps may assume a new importance in the twentieth. The discovery of the American continent and the growth of maritime adventure gave fresh interest to a subject； which had been left in neglected obscurity， and the rising international system was not at first ready with rules to meet it. The first tendency of International Law was to attribute an exaggerated importance to priority of discovery. It was thought by the earlier jurists to be the same thing in principle as the Roman Inventio， the form of occupation by which under the Law of Nature property was acquired in a valuable object， such as a jewel， belonging to nobody. But in our days prior discovery， though still held in considerable respect， is not universally held to give an exclusive title. The United States indeed have not unreservedly agreed to the degradation of first discovery from its old consideration. In 1843 that Government protested against the ground taken by the British Foreign Office that a discovery made by a private individual， in the prosecution of a private enterprise， gives no international right. But the American Secretary of State in the same despatch admitted it to be a point not yet settled by the usage of nations， hoer far discovery of a territory which is either unsettled or settled only by savages gives a right to it. （Wharton， i. 5.） But this inconvenience of resting rights upon mere discovery has caused more distinct forms of occupation or annexation to be preferred to it. Nearly all titles of discovery are of old date， and many of these are matters of historical dispute； while at the same time the world is so well known that new titles of discovery are rare. On the whole， some kind of formal annexation of new territory is now regarded as the best source of title. It is still allowed that prior discovery， if established， may give legal importance to acts and signs otherwise ambiguous or without validity. A cairn of stones， a Flagstaff or the remains of one， may mean little or nothing if found on a desolate coast； but if it can be shown to have been put up by the first discoverers， it may obtain great significance and importance. All discovery is now disregarded， unless it be followed by acts showing an intention to hold the country as your own， the most conclusive of these acts being the planting upon it some civil or military settlement.

　　A great distinction is now drawn between appropriators of new territory who are furnished with a general or special authority to effect the annexation， and appropriators who have no such authority. If the

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