Cyclopædia of Political Science, Political Economy, and the Political History of the United States

Edited by: Lalor, John J.
(?-1899)
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1881
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New York: Maynard, Merrill, and Co.
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1899
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Includes articles by Frédéric Bastiat, Gustave de Molinari, Henry George, J. B. Say, Francis A. Walker, and more.
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LAW

II.249.1

LAW, International. *44 I. What is International Law? what is its basis? International law, no longer confined in its operation to the nations of Europe, has no less a destiny than to unite all individuals and all states, the whole human race, in fact, in one great community of rights, of law. International law embraces the principles governing both the legal relations of states with one another (international law proper). and the legal relations of the individuals of a state to individuals who are aliens to that state, and of individuals to foreign states (private international law). Only to the extent that we recognize in foreign nations. and even in individual aliens, a common humanity, a humanity everywhere and ever the same, do we enter into an international relation with foreign states and individuals.

II.249.2

—When we closely compare the basis of the public or constitutional order of things with the basis of the international order of things, an essential difference between them can not escape us.

II.249.3

—The public or constitutional order of things is based upon a strongly articulated public or constitutional organism. In the public or constitutional order of things there exists a public or constitutional power, which is independent of the individuals belonging to the state, and which all such individuals must obey. The government is, vis-a-vis of the governed,. a self-dependent power based on a firm organization.

II.249.4

—It is otherwise in the international order of things. In a certain respect, indeed, states bear the same relation to international law that individual citizens bear to the state. Thus, individual citizens are in duty bound to obey the state, and individual states owe obedience to international law; thus, too, the state is above individual citizens, and international law should be above individual states; thus, finally, individual citizens see, in the state, a higher authority which regulates their relations to one another by law, and individual states should look upon international law as the rule to regulate their international relations.

II.249.5

—In other respects, however, the similarity ceases entirely. There is, for instance, no constituted international authority over, and independent of, states, as the authority of the state is above, and independent of, individual citizens. When it becomes a question of enforcing international law, states can not appeal to any power above them as do individual citizens, in case of necessity, to the coercive power of the state.

II.249.6

—Rather is the attitude of states to international law and their relation to international authority to be thus conceived: spite of the fact that states are governed by international law and should obey it, they are themselves the sole and voluntary supporters, upholders and enforcers of that law—the sole international power, following their own unconstrained good will. There exists no great international central body holding the several states in their international orbits, as does the sun the planets which it causes to revolve about it; the ruling centre of gravity of international law does not lie in a separate self-dependent organism: rather is the realization of international law to be conceived as the consequence of the reciprocal influence of the gravitation of the several state-bodies themselves. And if we be allowed to continue this figure borrowed from astronomy, we may remind the reader of the double stars which revolve not about a third body nor about the sun but about each other, thus giving themselves a common, ideal centre. International law is an ideal centre of this kind for states. It is, indeed, a governing centre; and yet it is a centre created continually only by the reciprocal influence of the several states, one which is, at any given moment. the act of their own efficiency and force.

II.249.7

—This has been ignored by two opposite schools. Many, like the German philosopher, Wolff, overlooking the fact that international power rests in the individual independent states themselves, based international law on a universal state (civitas maxima). Others, on the contrary, like Hegel, pushing the idea of the sovereignty of individual states to an extreme, look upon international law only as external public law. They do not sufficiently bear in mind that international law, although lacking a self-dependent organism, stands high above individual states. According to Hegel, international law is only the outer side of the state, and has its centre in the state. And, indeed, to the positive rights of individual states belong their external rights, their "external public law," i.e., the aggregate of the international provisions and treaties, which give expression to the legal relations of those states to other states. Every individual state has its internal public law and its external public law; and this external public law is a fragment of international law. But international law draws all these external rights of states together about its own self-depend ent centre, and thus gives us the principle, from which, as the central unit, all individual external public rights of states are to be understood and controlled. Every individual external public right is only a fragment from the periphery of international law. Hegel's error consists in this, that he places the centre of this periphery in the individual states, i.e., that he does not free the principle of international law from the state.

II.249.8

—But the question may be asked, whether the absence of an international authority lodged in a self-dependent organism, and the consequent absence of a coercive power over states engaged in a conflict or controversy, of a power which might declare and enforce the law; it may be asked, we say, whether such an absence of such an authority does not deprive international law of all life, and whether it does not turn all the rules of international law into a series of pleasant dreams destitute of reality.

II.249.9

—But the life of the law is, in no way, merely a continually forced existence; and even within the limits of the individual state, the government is by no means obliged uninterruptedly to employ coercion in order to make the law obeyed. The existence of the law, even in individual states, is based essentially on the power of reason. On the whole, the law exists because it is the right, and because men's minds recognize it as such. Even when the coercive power of the state is removed, the condition of things which the law had created is not destroyed. When that power is taken away, there occur, indeed, many instances of excess, but the general ideas of right and wrong remain unshaken, like immovable pillars which do not by any means rest on the pedestal of governmental compulsion. And it is precisely in times of great social crises, in which, spite of the paralysis of governmental power, property, and the law generally, often remain undisturbed, that we find convincing proof of what little coercive means suffice to a wise government which knows how to win the minds of men and properly to use the power of reason. International law rules generally, because it is the expression of the reason of nations, to which nations voluntarily submit; and the treaty provisions and the non-treaty provisions of international law enter daily unquestioned and uncontested into thousands of human transactions, in all civilized nations. Hence from the absence of an organized coercive power, it can only follow that, in individual exceptional cases, in which the right or the law is violated, the existence of international law is suspended; but spite of this, the existence of the international law in general should not, there fore, be denied.

II.249.10

—But we must go farther and claim that, even in these exceptional cases in which unreason or selfishness rises up against the right, international law is not defenseless, and that, for the most part, even then, it does not depend on the greater physical power of the individual state whether it will obey or violate international law. Even in such cases there exist guarantees for the maintenance of international law which are not entirely powerless. The power which rises up against the law, has to do not merely with the perhaps weaker power of its opponent. Rather is the power of the weaker under the aægis of both moral and material coercive means. These means are the following: 1. By a breach of international law, a state exposes itself to general reprobation; and its honor suffers injury. No low estimate is to be placed on this first guarantee of the law. We know what a powerful moral coercion the law of honor has in all moral communities; the individual will stake his life to save his honor. And really, in the great community of states, honor plays no less a part. There is, indeed, no state which would not feel its arm more or less weakened, by a deed which injured its honor. 2. A state which violated international law, would deprive itself of the advantages of that law. It would exclude itself from the advantages of international communion, and would thus incur great material disadvantages, such as reprisals of all kinds, the paralysis of its commerce with foreign nations, etc. Hence there is a species of material compulsion to obey international law. The violation of that law carries with it loss, property penalties, so to speak. 3. A state, intent only on fulfilling its unlawful design, might, indeed, disregard all this. But, when such is the case, we see, as a rule, that direct coercive measures are employed against that state. Alliances of several states powerful enough to subdue the wrong, are wont to be formed against such bold contemners of the law. 4. If it be objected to these alliances—called into being because the law is left momentarily in the lurch—that they are, after all, only accidental and transitory, and afford international law no reliable and lasting protection, we may finally point to the pentarchy of Europe. For a long time the five great powers have practically constituted a species of tribunal of nations, which watches over the observance of great treaties between states and of international customs.

II.249.11

—Hence there are a great many guarantees and measures of coercion for the maintenance of international law, and it would be an exaggeration to put the observance of merely moral and charitable duties on the same level with the international duties of a state. The great system of states is not so badly constituted that the will of an individual state, disregardful of the law, can trample on the principles of the great whole at its pleasure.

II.249.12

—It can not, however, be denied that all these guarantees of international law are frequently insufficient.

II.249.13

—In most cases states come to disagree because on this subject or that they appeal to and apply different legal opinions. It is seldom, indeed, that one state does another an entirely evident wrong. In a case of such bold contempt for the law, a great alliance of states would be sure soon to be formed, in order to repel the wrong in the name of the system of states injured jointly with the individual state. But the cases of mere legal controversies between states are incomparably more frequent.

II.249.14

—What, then, becomes of the means of protection which should uphold international law when menaced?

II.249.15

—Since the party which is in the wrong here honestly believes itself to be in the right, it need not fear any detraction from its honor or any exclusion from the community of nations. Alliances to protect uncertain rights will not be calculated upon. Finally, the members of the pentarchy, before coming to a decision and taking action, would have to agree among themselves. But there is no means by which such an agreement can be effected. There is no binding mode of voting in force among the five powers, no constitutional rule in accordance with which the decision of the majority is looked upon as the decision of the pentarchy itself. Besides, the great powers themselves may be the opposing parties in an international controversy as to their respective rights; and it would evidently be derogating from the other states, some of which are still very powerful, to submit them to the judicial authority of the five great powers. Representatives of the smaller states, too, would have to take part in the decisions of international controversies, in order that the principle of the equality of states might be preserved. Representatives of all important nations should participate in such decisions, to the end that the judgment rendered might not be given in a narrow, national sense, but that it might proceed from the true source of international law, from universal human reason.

II.249.16

—Here evidently there is a rent, so to speak, in the structure of international law, through which many a destructive storm will yet break. Congresses, courts of arbitration, and even a permanent tribunal of nations with limited jurisdiction, might, indeed, prevent much evil, and settle many questions of war in a rational and peaceful way. For judicial decisions can apply only existing law, and can not decide concerning those states of things in the future which the spirit of humanity—the spirit that rules in history and is ever transforming the present—conjures up in the course of time. Thus the great questions of nationalities are questions of the growth of historic powers which can never be held in check by the arm of the administration of justice. In every great historic crisis in the life of the state, a new condition (of justice) is evolved out of the old, one which destroys the old and which from the standpoint of the old seems illegitimate. To condemn this new condition of the right by a judicial decree which is thinkable only on the basis of the existing condition of the law, for the reason that it is opposed to the spirit of the law actually in force, would be to stop the course of history and to petrify the mind of humanity.

II.249.17

—We can only hope therefore that the rent here referred to in the walls of the structure of international law may never close, but that it may remain forever open to admit the fresh drafts of the air of the future to peoples and states, vivifying and purifying them.

II.249.18

—II. History. Since from the remotest times of which history has preserved any account, peoples and states have had some kind of intercourse with one another, and since all human intercourse is accompanied by a mode of procedure more or less legal, there has been at all times a species of international law; and we may speak even of an international law of savage nations. (Fallatti, Keime des Völkerrechts bei wilden und halbwilden Stâmmen, in the Tubingen Zeitschrift für Staatswissenschaft, 1850, pp. 150, etc.)

II.249.19

—The international law of to-day, however, is a product of Christian Europe. It has no perceptible connection with the old international law of savage tribes, nor with the international law of the Orientals, nor even with that of the ancient Greeks and Romans. Hence a history of the international law of to-day must be confined to Christian Europe and to the countries which it has fructified in the intellectual order. The east, as well as Greece and Rome, we shall mention only to show the character of ancient international law and the contrast it offers to the international law of our times.

II.249.20

—True religion generates a love as broad as the world, a love which embraces all mankind, breaks down the barriers which separate peoples into hostile camps, and leads to a community of nations. In the east, religion is everything. It absorbs both the law and the state. It is rigidly national, with the utmost hostility to all international community. Thus, the Jews looked upon themselves as the chosen people, holding a commission from Jehovah to extirpate all neighboring peoples and consume all nations whom the Lord God would give them. (Deuteronomy, vii., 1, 16.) The institutions of the Jewish people calculated upon their seclusion from other peoples. The law of Moses, indeed, ordains that exaction shall not be practiced on strangers, that they shall not be vexed (Leviticus, xix., 33); it even ordains that there shall be one manner of law for the stranger and for the Jew (Leviticus, xxiv., 23): yet, in spite of this, we find a very marked disregard of, and want of consideration for, strangers in this same law (compare Leviticus, xxv., 45, 46), and that the practice of usury was forbidden the Jews as against their Jewish brethren and at the same time allowed them as against strangers. (The field of oriental international law has been cultivated by Haelschner, Diss. de jure gentium, quale fueril apud gentes Orientis, Halle, 1842; by Pütter, Beiträge zur Völkerrechtsgeschichte und Wissenschaft, Leipzig, 1843; Müller-Jochmus, Geschichte des Völkerrechts im Alterthum, 1848. These works, however, are vastly surpassed by the great work of Laurent (Geneva): Histoire du droit des gens et des relations internationales, tome i., L'Orient, 1850.)

II.249.21

—In the minds of the peoples of classical antiquity, the state occupied the first and highest place to such an extent that they sacrified to it the whole domain of private life, religion and foreign peoples. This is true especially of the Greeks at the period of their prime. We may be silent as to Sparta, which sacrificed all human feelings to the Moloch of the state. But even the ideal of Athenian morality, as it finds expression in Plato's "Republic," is a state which absorbs every other moral domain. The Greeks knew nothing of a humanity which exceeded the limits of the state. Their motto with regard to other nations was: Eternal war on the barbarians! (Livy, i., 29: Cum aliengenis, cum barbaris, œternum omnibus Grœcis bellum est; Heffter, Volkerrecht, § 6; Ward, "Enquiry into the Foundation and History of the Law of Nations in Europe, from the Time of the Greeks and Romans to the Age of Hugo Grotius," London, 1795, 2 vols.; Wachsmuth, Jus gentium quale obtinuit apud Grœcos, Berol., 1822; Heffter, Prolegomena de antiquo jure gentium. Laurent, in his work already cited, devotes a separate volume (the second) to the international law of the Greeks. Compare also, Henry Wheaton, Histoire des progrès du droit des gens, tome i., pp. 1-17, and G. de Wal. Inleiding lot de Wetenschap can het europesche Volkenregt, Groningen, 1835.)

II.249.22

—The ancient world was, indeed, acquainted with certain customs of nations agreed upon by all, especially in regard to the conduct of war, ambassadors, asylum and treaties. Ambassadors were held to be inviolable, and it was considered that treaties between states could not be rightfully broken. But was it the consciousness of right that supported this inviolability, and this respect for treaties? It was not. It was religion in which the principle of legal right was still enveloped. Hence, ambassadors made their appearance with religious symbols, and thus claimed for themselves the protection of religion. Treaties were sealed with the religious sanction of an oath, and solemn sacrifices were offered to the gods when they were closed. But beyond this, the ancients considered that they owed no obligations to strangers or barbarians.

II.249.23

—The Greek tribes frequently treated each other with the most revolting inhumanity. After the fall of Mitylene, the reputedly mild Athenian people decreed that all its male adult population should be put to death and that its women should be reduced to slavery; and although a second decree prevented this atrocity, about a thousand men suffered the penalty of death and the land was divided among Athenian citizens. The surrender of Platæa to the Lacedemonians took place contrary to the promise that only the guilty should be punished. With infamous sophistry the Platæans were simply asked whether they had been useful to the Lacedemonians during the war; and, as they very naturally denied that they had been, orders were given that they should be put to the sword, their wives sold, their houses torn down, and their city and lands transferred to the Thebans. In like manner, after the conquest of Melos by the Athenians, all its citizens who had attained to man's estate were, by order of Alcibiades, put to death.

II.249.24

—To what extent the rights of mere humanity were ignored is shown by the existence of slavery, especially that of the helots. Slavery was maintained not only by the coarser lower classes of the Grecian people, but it was approved by Greek philosophy. To such a degree were the exclusive rights of Greek nationality the limit of the highest moral consciousness of the Greeks, that even an Aristotle could say that the barbarians were intended by nature to be the slaves of the Greeks. (Arist. Polit, lib i., cap. 8.)

II.249.25

—The Greeks distinguished peoples into non-allies and allies, . Non-allies were considered as having no rights. All peoples with whom they had no express alliance they treated as enemies, and permitted themselves, as in the case of the Platæans, all kinds of treachery and atrocity against them. (Thucydides, lib. iii., cap. 68)

II.249.26

—The amphictyonic league was an attempt by the Greek tribes to form closer ties The amphictyonic council was a general federal court for the whole of Greece. Each Greek city sent two representatives to it, first to Delphi and afterward to Thermopylæ. Religious solemnities accompanied their assembling. After this, international controversies were settled, and crimes against the temple at Delphi and violations of international customs were punished. A money penalty was imposed on the guilty people. If the penalty was not paid at the proper time, it was doubled. When all other means failed, the decree of the amphictyons might be carried out by the full force of arms of the league. (Titmann, Ueber den Bund der Amphiktiyonen, 1822; Heinsberg, De Concilio Amphictyonum, 1828.) The amphictyonic council was closely connected with the Delphic oracle, in the immediate vicinity of which it was originally held. This connection gave the sentences of the council a higher sanction. The Delphic god took its decrees under his protection, and made them, so to speak, laws of religion. Yet the utility of the council was not great. (Johannes von Müller says of the council, in his notes on Herder's works on philosophy and religion, vol. vi, p. 153, ed. of 1827: "It can not be boasted that it was of much use in times of great crises. In many things it was like the German reichstag.";) Hence not many rules of international law proceeded from the amphictyonic council. Endeavors were made by some provisions to mitigate the laws of war. Mutual agreements were entered into to bury those who had fallen in battle, and the right of asylum in the temples was recognized. Beyond this, the influence of the league did not go; and it lost its really international importance by the fact that it excluded all other nations.

II.249.27

—Among the Romans we find, from the very earliest time, the jus feciale, based upon ancient Italian customs. The college of fetiales, or Roman priests, instituted by Numa, consisted of twenty members, with a paler patralus at their head. The fetiales were invested with a diplomatic character. International transactions and declarations of war were within their province. A religious and priestly character was attributed to them, and their acts were accompanied by religious symbolic ceremonies. (Livy, i., 2; Plutarch, Numa, c. 12; Dion., ii., c. 72; Cic. de Leg., ii., 9; Weiske, Considérations sur les ambassadours Romains, comparés avecles modernes, Zwickau, 1834; Osenbrüggen, De jure belli et pacis Romanorum liber singularis, Lips., 1835; Müller-Jochmus, Geschichte des Võlkerrechts im Alterthum, Leipzig, 1848; Laurent, Rome, tome i.)

II.249.28

—However the international observances of Rome may have developed and extended from these first germs, certain it is that the really fundamental idea of international law never asserted itself among the Romans. They neither respected foreign nationalities nor recognized the universal dignity of human nature in the individual. They annihilated those states and nations which would not become subject to them, and extinguished the character of nations. In their devastation of Greece, they had no respect even for Greek civilization. They sold hundreds of thousands of Greeks into slavery, and finally filled Italy with such a mass of slaves that destructive wars of the slaves broke out, wars in which the suppressed rights of human beings avenged themselves on their hard-hearted despots.

II.249.29

—The Germanic races, when they began their incursions into the Roman world, confronted other nations with their rugged and repulsive nationality. Their weregild system is evidence of the small value they put on persons of foreign nationality. They dispossessed proprietors, in conquered territory, of their lands, and reduced the conquered, for the most part, to the condition of bondmen. Strangers they looked upon as having no rights. Yet hospitality was sacred in the minds of the Germans; and hence they had some susceptibility for the ideas of humanity and of international law.

II.249.30

—The Romans who dwelt mixed among the Germans, lived, even after their subjugation, in accordance with the Roman law. Even the national privileges of the Germans assumed a Roman coloring. The Germans allowed the framework of the Roman constitution of the provinces to rest on its old Roman foundation. In many parts of the former Roman empire, as, for instance, in the Burgundian and West Gothic parts of the Frankish empire, the constitution of the Roman city was maintained The downfall of the western empire left after it, accordingly, very important traces of Roman regulations and Roman laws.

II.249.31

—Besides, Rome and Byzantium lived on in the imagination of the young, fresh conquering nations which had destroyed the Roman empire. A German-Byzantine dualism runs through the whole old constitution of the Frankish court, a constitution which may be traced back, in part, to the retinue system of the Germans, and in part to regulations of the Byzantine court. The idea of the old Roman empire was at work even in the minds of Alaric, Ataulph and Theodoric. In Charlemagne it became clearly manifest.

II.249.32

—Besides the influence of Rome on the new nations, we early perceive the influence of Christianity and of the church also. The idea of humanity is the offspring of Christianity, which would unite the whole human race into a nation of brothers, and which declares human personality sacred in every human being. Both Christianity and international law rise above, and go beyond, what is simply national. Christianity and international law are called to unite the whole human race. Whereas, previous to Christianity, the people of each nation could follow only their own great leaders, in whom they recognized the personified prototype of their nationality, in Christ a common prototype and sole centre was given to all humanity; and by this fact all barriers between nations were by anticipation removed. (Galatians, iii., 28; 1 Corinthians, iii., 21-23, and xii. and xiii. Schleiermacher speaks pertinently on this point.) Thus was the spiritual soil in which international law might grow, prepared. An important contrast must, indeed, not be overlooked here. International law was called upon to establish only an external legal community. Christianity, on the other hand, was to establish an internal community, embracing the whole human race. But the eyes of humanity had first to open gradually to the purely interior greatness of the Christian idea; and thus the purely spiritual universal empire of Christianity was transformed with the priesthood of the Roman empire into an external universal empire, not unlike the old empire of the Romans. The unification of the church was completed by the concilia œcumenica and the papacy. With the constitution which it had obtained in the Roman empire the church entered among the Germanic nations, and drew them into its great hierarchic unity. Finally, the grand minister of the middle ages became one great spiritual-temporal whole, with its two high-towering spires, the papacy and the empire. Christendom was one sole, firmly articulated body. God had given it the two swords, the spiritual and the temporal. The church had a deeper conception yet of the great unity. It denied the dualism of the two swords, and deduced all power, even the temporal, from the one spiritual centre.

II.249.33

—The old view, that all foreign peoples were barbarians and enemies, was now, in spite of the coarseness of the period, overthrown, and a higher standpoint reached. The idea of a union of the human race to be effected by Christianity, of a union whose firm foundations were to be the papacy and the empire, had, from the time of the coronation of the emperor Charlemagne, become a living, propelling force in the nations. The empire of Charlemagne, extending from the Ebro to the Raab, and from the Tiber to the German ocean, united the nations of middle and western Europe, whose future was so rich, and gave them, in the capitularies, certain common laws. The peculiarities of the several nations were maintained in the empire, and each people was allowed its own special national laws. The system of personal rights which obtained in the Frankish empire, and by virtue of which every member of a nation was judged, even when in a foreign nation, by the laws of the nation to which he belonged by birth, was pregnant with the mutual recognition of the rights of foreign nations, a recognition of great importance for the development of international law.

II.249.34

—The empire of Charlemagne, indeed, crumbled to pieces soon after its founder's death. The Germans were not yet ripe enough to preserve so vast a political organization in its objective self-dependent course. To do this, they needed a powerful governing personality, and such a personality they did not find after the death of Charlemagne. Moreover, nationalities within the empire had, even now, assumed characters too dissimilar. The Romanic and Germanic elements, especially in the different parts of the extensive empire, had become so inseparably and peculiarly mixed that the modern character of the different nations with their mutual repulsion became perceptible. The accidental external reunion of the great empire under the weak-headed and cowardly Charles the Fat, in the year 884, was not able to overcome these too powerful differences any longer. The history of the several parts of the Frankish empire now begins, and the union of France and Germany comes to a close completely. None the less, the capitularies lost their formal force and application with the dissolution of the empire. But the great community of nations of the Frankish empire was as far from passing away without lasting after-effects on the subsequent life of the nations of Europe, as the overthrow of the Roman empire was from destroying Roman ideas. Nations had come into close contact with one another, and had acquired certain common views of law, of the state and of the church. Those countries into which the peculiarities of the ancient Germans had made their way, retained a certain unity in their modes of thinking and in their mode of life, which subsequently became the foundation of international law and of the European system of states.

II.249.35

—With the dissolution of the empire of Charlemagne, the energetic temporal centre for European nations ceased to exist. The empire of the Germans was of less importance than the Frankish empire. True, Henry II (1002-1024) continued to receive from the pope the golden symbol of imperial power, a ball surmounted by a cross, significant of the empire of the world under the protection of the Christian church: but Henry owed this less to his vigorous assertion of the position of the imperial power in the world than to his obsequiousness to the clergy; and the symbol was less calculated to call to the emperor's mind his imperial power than the protection he received from the church. The church was even now in need of reform. The emperor, Henry III., began this reform inasmuch as he checked simony, the immorality of the clergy, and party spirit in Rome, by promoting suitable German bishops to the papal chair, who endeavored with all their might to repress the old disorders. The popes, in consequence, acquired renewed authority, which they caused to be felt partly through their legates and partly in person. This renewed consideration for the popes depended on the power of the emperor to whom the popes owed their place, and without which they would perhaps have fallen back into their former condition. But this dependence on the emperor did not last long. The greater the papal power, through the emperor's own co-operation, became within the church itself, the more strenuously did the pope strive to make himself independent, even as regards the emperor. Hence the reformation of the church begun by Henry III. soon took a turn disadvantageous to the imperial power itself. His successor, Henry IV., met in Gregory VII. a pope who made the bold attempt to transform, at the cost of the imperial dignity, all Europe into one great theocracy that he might enthrone the pope on the summit of the great theocratic pyramid of the world. The papacy interfered in the province of states more and more, curtailed their sovereignty, and caused the greatest collisions to take place among them while the idea of the imperial dominium mundi faded away. The independent centre of gravity of states was displaced by the papacy. Uninterrupted papal interference checked their concentration and disturbed the process of their development.

II.249.36

—In a certain sense, indeed, the Roman hierarchy united Europe into one great whole; and the pope was at times a Christian international tribunal for states in conflict with one another. The church, too, prevented the shedding of much blood by the institution of the truce of God. But there was little peace, under the auspices of the papacy, among states, and the papal see was by no means guiltless of this fact. This double power, this papal state within all states, brought it to pass that states could not comprehend themselves and could not grow strong and firm internally. But self-dependent states are a condition precedent to the existence of international law, and where there are no autonomic states an international system of states can never be formed; where there are no autonomic states, the idea of international law is wanting in the organs by which that idea can be properly realized. Hence the phenomenon that the international law of private individuals, that the recognition in every man of his purely human rights binding everywhere, preceded the international law of states in the middle ages. The bishops of that period, impelled by the spirit of Christianity, took the oppressed under their protection, checked the trade in human beings, ransomed slaves and opened the asylum of the church to the rights of man; while the great Christian nations, not without the church's being in fault for it, engaged it barbarous struggles with one another.

II.249.37

—We can not find a paving of the way for international law in the middle ages nor in the crusades. Chivalry, indeed, attained to sword law and feudal law, but not to an international law; while the crusades aroused between Christian nations and infidel nations an opposition inimical to international law. They neither promoted the cause of humanity, nor opened new avenues to commerce, nor established a closer or more rightful relation among the nations of Europe. The so-called holy wars began with a frightful slaughter of the Jews, devastated a great part of Europe, and trampled under foot the best germs of the development of the sentiment of humanity. But one thing we must grant—the universality, the European character of the crusades. In them all Europe participated, was animated by one feeling, and united to do one thing. In this first European movement, it became manifest that there was one great common European national life.

II.249.38

—Good consequences flowed from the commercial spirit and from the alliances of cities, which was the cause, finally, of a commercial state that extended its sway over the Atlantic ocean and over the Black, Mediterranean, Baltic and North seas. These cities, the prince of which was Lübeck, were situated in Germany and the Netherlands, in the northern kingdoms, Poland, Prussia, Russia and Livonia; and the greatest commercial places in England, France, Spain and Italy associated themselves with them. This league was perhaps the most effectual the world has seen. It did more to make Europe one commonweal than all the crusades and all the usages of Rome; for it went beyond differences of religion and nationality and established the alliance of states on mutual utility, on emulous industry, on honesty and order.

II.249.39

—Under Innocent III., the greatest man of his age, who, from 1198 until 1216, conducted papal affairs with equal firmness and shrewdness, the papacy rose once more to its full height. He gave utterance to it as a principle, that Germany and Italy should not be united under one crown—a principle which, if strictly carried out, would have led to the independent importance of Italy. With a bold hand he interfered in the political quarrels of Europe. But the consciousness of the states of Europe of their own rights rose up against him. The German empire had, indeed, been on the road of decline since the interregnum (1256-73) and the Hapsburgs were unable any longer to prevent the separation of Switzerland from the empire (1308). But states assumed a manly attitude toward the papacy. France reduced the pope to complete dependence on it (Avignon exile, 1305-78). Germany was no longer willing to allow the interference, in its political affairs, of a pope reduced to bondage by France, but still presumptuous in his bondage. The memorable assembly of electors at Rense (1338) declared the election of the German king to be independent of his confirmation and coronation by the pope; and Germany boldly proclaimed to the world that it wanted to see the spiritual power confined to the sphere of the spiritual. The council of Basil also, which lasted from 1431 to 1444. and revived the principle that a general council was above the pope, deserves mention in this connection.

II.249.40

—How much the dominium mundi, conceded to the emperor, implied, was not clearly defined, and the whole idea had in it, at all times, much that was fantastical. Yet that the emperor had precedence of all other rulers was recognized even during the decline of the empire, and the emperor had the right to grant the title of king, as the royal Bohemian and Polish dignity had their origin in imperial privileges. Yet in other kingdoms, and not in France and England only, men felt themselves much more independent of the emperor than of the pope.

II.249.41

—The mariner's compass, gunpowder and the art of printing were three great elements of progress. The mariner's compass opened the broad ocean to commerce, and extended that commerce over the whole earth. Gunpowder put an end to the carnage of personal combat and made war more humane. The art of printing brought about a rapid exchange of thought in Europe, and generalized the beneficent effects of the sciences, then rapidly growing.

II.249.42

—Three powerful currents had, from the beginning of the middle ages, poured themselves over the whole of Europe, and spread everywhere like intellectual elements: the Roman current, with the idea of the empire, of provincial and municipal organization, and of intercourse regulated by law; the Christian current, with the idea of humanity, the idea of universal fraternity, and ideas of pure morality; lastly, the Germanic current, with the ideas of personal faithfulness and honor, but especially of individual liberty and self-government. As the great deposits of these currents in the domain of law appeared the corpus juris civilis, the corpus juris canonici, and the corpus juris Germanici: all three of European importance and of consequence to all Europe.

II.249.43

—The renewed diffusion of Roman law over a great part of Europe and the principles of Christianity gave a common basis to European law. The Bible and the Institutes of Justinian became the common property of all the more civilized nations of Europe, and brought about the harmony of moral and legal ideas necessary to the international agreement and understanding of states.

II.249.44

—The reformation, the first great intellectual European upheaval, which, begun in Germany, spread over the whole north and west, brought the middle ages, from the standpoint of international law, as from all others, to a close. The reformation rendered possible, for the first time, the existence of self-dependent states—the support and organs of the idea of international law—by doing away with the dualism of the spiritual and temporal power, and by emancipating the state from the joint lordship of the Roman see.

II.249.45

—The ascendency of the church could not, from this time, be feared by states. But, on the other hand, one state might obtain a dangerous preponderance over other states. And, indeed, from the sixteenth century, we find two ideas, engaged in a decided struggle with each other: the idea of a universal monarchy and the idea of the balance of power. The idea of a universal monarchy was a legacy of antiquity which knew little of international rights. It was inherited by the Frankish empire and then by the Germans; and after the decline of the empire other states sought to realize it. The more modern principle of international law, on the other hand, sought realization in the idea of the political balance of power.

II.249.46

—From the standpoint of the development of the European system of states, the thirty years war is to be considered as a reaction of the idea of the balance of power against the ascendency of the house of Hapsburg. How the relations of states, in what concerns international law, have been modified from the peace of Westphalia to the present time, is best studied in the history of modern congresses and treaties of peace. The further development of the theory of international law will be treated of briefly in what we shall have to say in this article on the literature of the subject.

II.249.47

—In spite of the wars and revolutions which have stirred Europe in recent times, humanity has gained visibly; the consciousness that all men belong together has grown stronger; the foundations of international law have become broader and firmer; and numerous traces of a barbarous international condition, which we find mentioned by writers on international law as still the law of barbarous peoples, are disappearing before the ever brighter and ever warmer beams of the still ascending sun of Christianity. An eloquent sign that the spirit of the present has invaded the sphere of international law is afforded by the Paris congress of 1856. Although that congress gave only an imperfect solution to the Eastern question, which was the occasion of its coming together, it will remain forever memorable in the history of international law, because of its reception of Turkey into the political system of Europe, because of its humanization of the laws of naval warfare, and because of the wish solemnly expressed by the powers before all Europe—though that wish was never fully realized—that in controversies between nations, these latter should, so far as circumstances permitted, have recourse to the good services or to the mediation of a friendly state before resorting to brute force. We have only to open the eye of the intellect to discern from this point the lofty mountain tops of the ideas of the modern era gilded by the sun of the future.

II.249.48

—III. Sources of International Law. 1. Treaties between states occupy the first rank among the sources of international law.

II.249.49

—2. A second important source of international law are the records of the official proceedings of whatever kind, in which states have given expression to their convictions on international law. Here belong, 1st, the protocols of congresses and international conferences of ministers. These protocols have, for the most part, served in the preparation of important treaties between states. They are, besides, a means, worthy of all consideration, to enable us to determine the true and complete sense of the treaties for which they have paved the way, and hence they must be considered a source of at least so-called special or particular international law, that is, of that international law which is binding only on the contracting states. In addition to this, they frequently contain the expression of the common conviction of the right of all civilized states, and thus furnish valuable material for the international law which is "binding on all states." Here belong, 2d, the declarations of the great powers, notes, manifestoes, correspondence, and even the protests of states. Declarations of the great powers as to their views of the right, such as the declaration made by them in 1856 in relation to maritime law, acquire very soon, when they have reason on their side, a force equal to what they would have if made by a legislative body. Manifestoes, notes, correspondence, are often the unbiased expression of legal convictions, which will never afterward be questioned by states in their international intercourse with one another. Even the protests of individual states against violations of rights by others may be considered as a source of international law when, because based on the right, they have received the assent of impartial states or of impartial posterity. Neither of these kinds of documents, however, has the binding force of treaties. Science should be as far from passing them by without notice as it should be from accepting what they contain without any more ado. Rather is science here called upon to go into the fullest examination. The material of these documents is to be found in the numerous writings on treaties of peace, those which are wont to appear under the titles Négotiations, Négotiations secrètes, Actes et Mémoires, Pièces officielles; also in the matters laid before constitutional chambers for their discussion, in the collections of "state archives," "political archives," etc., in the blue books; but especially in the voluminous English "portfolios."

II.249.50

—3. Laws and regulations of individual states come into consideration, in various ways, as sources of international law. Where, for instance, on matters which may become the subject of international as well as of private or civil controversy, the laws of states agree, and when no objection can be rightfully raised against applying the principles of the civil law, by way of analogy, to cases of international dispute, a controlling principle of international law may be deduced from the civil law. So, too, when the principles of purely international law are incorporated into the statute law of a country, as has been done, for example, in the law of booty, the law of blockade, in the laws on the slave trade on the high sea, either because the statute law of the countries in question anticipated the universally admitted principles of international law, as did, for instance, the English laws on the slave trade, and the French decree of March 28, 1852, which absolutely prohibited the reprinting of foreign books on. French soil; or else because the legislation of an individual state has merely sanctioned provisions of international law already universally recognized. More especially worthy of notice are the laws and regulations of states governing maritime prizes in times of war; for each state allows its own courts to decide on the validity of the maritime prizes made by its ships. The state of course lays down laws by which its courts must be governed in such cases, and these laws are not the result of the caprice of the state; rather are they intended to be, as they should be, the expression of the general principles of international law.

II.249.51

—The old sources which constitute the common historical basis of the law of civilized Europe are gladly resorted to, the Roman law and also the canon law, so far as both continue to express the consciousness of right of the present. The Roman law and the canon law have of course no legally binding force on nations; only as ratio scripta can they be taken into consideration.

II.249.52

—4. The verdicts of international courts, of so-called mixed commissions and prize courts, fill a place in international law similar to that filled in Roman law by prejudication. The same may be said of the legal opinions asked by states in matters of international dispute. Very important are the decisions of mixed commissions which are composed of arbitrators of different states on the international controversies of such states. By the very composition of such commissions, the national narrowness of the legal consciousness of the commissioners is removed, and the way opened for the universally rational. The judgments of prize courts, indeed, since prize courts are appointed or established by the one party or the other, have not the presumption of complete impartiality in their favor. Such judgments must therefore be constantly criticised and cautiously used. Legal opinions on questions of international law are sometimes asked by a state of its own jurisconsults, and sometimes also from distinguished foreign jurisconsults, that it may regulate its course according to them. Such opinions possess especial weight and the strongest presumption of impartiality when they are opposed to the interests of the jurisconsult's own consulting state; their importance is so much the less in the opposite case.

II.249.53

—5. In view of the deficiency of international law in positive provisions, the writings of jurists enjoy great authority in it. Statesmen gladly consider themselves bound by what they find in them. Not for the reason that the writers of such works are absolutely better versed in the matter than statesmen. But the individual case interwoven with a great many interests, which it is incumbent on the statesman to decide, makes him easily prejudiced and one-sided, and hence it is essential to justice and impartiality to listen to the voice of those who, unprejudicedly engaged in the cultivation of science, endeavor only to give expression to the truth. The weight of the decisions of jurists is increased when the writers of different, or, better yet, of all civilized nations, agree, so that it may be said we have in such opinions the harmonious testimony of nations.

II.249.54

—International customary or unwritten law can, in general, be drawn only from the writings of jurists, who here appear not as mere theorizers, but as witnesses to historical facts. We here distinguish international customs and international observances. International customs are recognized by certain uniformly recurring facts, in which a permanent consciousness of the legally right, one common to all nations; finds expression. The simple recurrence of the merely external facts is not decisive here. Proof is necessary that the reason of the recurrence is, in very deed, in an unchanging consciousness of nations of the right. By observances are meant the merely external formal usage, not the shaping of the forms of international intercourse, which has no essential necessity in it. They may for the most part be insisted on as real rights, as law, but they are not law absolutely, but only because of usage. A great part of international ceremonial law is based on such merely external usages; little of it depends on agreement, and hence much of it is controverted.

II.249.55

—When jurists speak not as witnesses to the historical international law, but as theorizers, their theories must be carefully examined, and subjective views must be distinguished from objective truths by independent investigation. Every theoretical proposition, however, which is nothing but an inference from a principle already recognized as a principle of international law, has an unqualified claim to being in force; and the art of the theoretic improvement of international law consists mainly in this, to grasp such principles and render them productive of others.

II.249.56

—IV. Literature. What we have to say here on the literature of international law may be considered, in a measure, as the continuation of what we have said above on its history—The theory of international law has been developed since the reformation. That theory received its first powerful impulse from the reformation which, for the first time in the world's history, made self-dependent states possible, and with the principle of intellectual freedom smoothed the path of political freedom. (Mart. Huebneri, Orat. de immortalibus Mart. Lutheri in imperia meritis, Hafn., 1761; Creuzer, Luther und Hugo Grotius, Heidelberg, 1846.)

II.249.57

—At first international law was treated as a part of the law of nature, because writers confounded the Roman meaning of the jus gentium with its modern meaning. Thus, Oldendorp, Juris naturalis, gentium et civilis isagoge, Coloniæ, 1537; also Hemming, De lege naturœ methodus apodictica, 1550; finally, Winckler, Principiorum juris libri quinque, Lipsiæ, 1615. Besides these predecessors of Grotius, the father of the science of international law, we must also mention Albericus Gentilis, who was born in 1551 in Ancona. He was obliged to take refuge in England because of his Protestant opinions, and died in Oxford in 1611. He wrote his De legationibus in 1585; in 1588, his De jure belli; and in 1590, De justitia bellica. From the relationship existing between his ideas and the resemblance of the subdivisions of his work, and even the titles of his chapters, to those of Grotius, it has been assumed that Grotius drew much from him. (The history of the literature of international law has been written by De Val, Inleiding tot de Wetenschap van het europesche Volkenregt, Gron., 1835; Kaltenborn, Kritik des Völkerrechts nach dem jetzigen Standpunkte der Wissenschaft, Leipzig, 1847; Robert Mohl, Geschichte und Literatur der Staats-wissenschaften, 1855. A comprehensive history of the literature of international law may be found in Henry Wheaton's Histoire du droit des gens, 4th ed., 1870. Among the precursors of Grotius, the Spaniard Suarez (1538-1617) should not be forgotten. He wrote De legibus ac de legislatore. Compare Kaltenborn, Die Vorlaufer des Grotius, Halle, 1848.)

II.249.58

—Grotius, however, is the first who accomplished anything of importance in international law.

II.249.59

—When the Spaniards demanded of the Netherlands, which had become independent, that they should no longer continue to carry on their trade with India, Grotius composed, in 1609, his Mare liberum, seu de jure quod Batavis competit ad indica commercia, Lugd. Bat. Subsequently, having fled to Paris, he there wrote his masterpiece, De jure belli ac pacis, 1625, in which we find a frequent admixture of views pertaining to natural law and to international law, although it is very evident it was Grotius' intention to give the world not natural law but international law, in the modern sense of the term. The influence of the work was very great, for it was permeated with the spirit of Christianity and humanity, while it opposed to the system of machiavellism only the simple fundamental principles of right. Gustavus Adolphus carried it always with him. All diplomates of the period immediately following Grotius referred to it as they would to a book of statutory law. It will live forever as the first work on international law. (Hartenstein, Darstellung der Rechtsphilosophie des Hugo Grotius, in the Abhandlungen der philosophisch-historischen Klasse der k. sachs. Gesellschaft der Wissenschaften, Leipzig, 1850; Van Hagendorp, Commentatio de juris gentium studio in patria nostra, Dorpat, 1858. Commentaries on, selections from, and translations of, Grotius' work have appeared in great numbers and increased its influence.)

II.249.60

—The Englishman, John Selden, contested Grotius' views drawn purely from natural right, in his De jure naturali et gentium, juxta disciplinam Ebraorum, 1629. He met Grotius' Marc liberum with his Mare clausum.

II.249.61

—A loftier position was taken by the Englishman, Richard Zouchy (Zouchœus). He was the first to write a text book on international law, which he did under the title: Juris et judicii fecialis, sive juris inter gentes, et quœstionum de eodem explicatio, Lugd., Bat., 1651.

II.249.62

—Pufendorf, the first teacher of natural law at Heidelberg, and later at Lund (born 1631, died 1694), starts out with the view that the doctrines of natural law and of international law are identical; that is, that certain same principles applied to individuals constitute natural law, and that applied to states and nations they constitute international law. He here follows Hobbes De Cive, cap. xiv., § 4. He denies international law on the whole the character of positive law. His Jus naturœ et gentium appeared first in 1672, and an improved edition in 1684. He found an adherent in Christian Thomasins, who, born in 1655, was professor at Halle, and died in 1728, a man who denied all positiveness to international law, for the reason that there is no legislative power over states.

II.249.63

—In opposition to this tendency in the direction of natural law, we find others insisting on the positive character of international law. Thus, Samuel Rachel (1628-1691) professor in Halberstadt and afterward in Kiel, and ambassador at the peace congress at Nimwegen; also Wolfgang Textor, who was born in 1637, was professor at Altdorf and Heidelberg, and died as protosyndic in Frankfurt in 1701. Rachel wrote De jure naturœ et gentium dissertationes duœ, 1676, and Textor a Synopsis juris gentium, 1680.

II.249.64

—Christian Wolff, who was born in Breslau in 1679, and died as chancellor of the university of Halle, in 1754, applied his notoriously stiff mathematical method even to international law. And so he composed his extensive work Jus gentium methodo scientifica pertractatum, 1749, and in 1754 issued an abridgment of it under the title Institutiones juris naturœ et gentium. He did much to systematize international law. He considered that nations and states stood in the same relation to one another as the members of the same body. He called the legal community of all nations and states a civitas maxima. By so doing, he—it matters not how much he dwelt on the independence of states—almost transformed the free community of states into the unfree unity of one universal state. (Wheaton, Histoire, 1853, tome i., p.227; Kaltenborn, Kritik, pp. 66, etc.; T. Rutherforth, "Institutes of Natural Laws, being the substance of a course of Lectures on Grotius' De jure belli ac pacis," Lond., 1754. See also. Burlamaqui, whose Principes du droit de la nature et des gens appeared originally in 1766, etc., in eight volumes; and Gérard de Rayneval, whose Institutions du droit de la nature et des gens was published in 1832, and a new edition in Paris in 1851.)

II.249.65

—Wolff's celebrated follower, Vattel, who was born in 1714 and died in 1767, selected the best of his master's ideas on international law and accepted Wolff's principles and definitions. Yet he could rightly claim that his work was very different from Wolff's. It has had, and still has, great weight. His Droit des gens appeared (1st edition) at Leyden in 1758; the second at the same place in the same year. The last edition, in three volumes, appeared in 1863.

II.249.66

—Johann Jacob Moser shows too great a contempt for philosophy in international law, but, on the other hand, furnishes us with a vast amount of philosophical matter, and thus supplies the theory of international law with a sure, positive foundation. It is to be regretted that he takes into consideration almost exclusively the historical events of comparatively recent times, instead of following the positive principles of international law in their gradual growth. Of the writings on international law produced by him during his literary career of nearly fifty years (1732-81), we must mention: Grundsatze des jetzt üblichen Europ. Völkerrecht in Friedenszeiten, 1750; Grundsätze des jetz üblichen Europ. Volkerrecht in Kriegszeiten, 1752; Erste Grundlehren des jetzigen Europ. Völkerrecht in Friedens-und Kriegszeiten, 1778; Versuch des neuesten Europ. Völkerrecht in Friedens-und Kriegszeiten, vornhmlich aus der Staatshandlungen der Europäischen Mächte, auch anderen Begebenheiten, so sich seit dem Tode Kaisers Karl VI., 1740; zugetragen haben, in ten parts, 1777-80; and, lastly, Beiträge zu dem neuesten europ Völkerrecht in Friedenszeiten, in five parts, 1778-80.

II.249.67

—Efforts were now made to systematize international law from the positive material collected, although the "systems" thus formed continued to have a very arbitrary, capricious character. (Compare Kaltenborn, Kritik des Völkerrechts, pp. 103, etc.)

II.249.68

—R. G. Gunther, a Saxon, who had published, in 1777, an anonymous work on the outlines of international law, composed a work: Europäisches Völkerrecht in Friedenszeiten, nach Vernunft, Vertràgen und Herkommen. mit Anwendung auf die deutschen Reichsstände. part i., 1787; part ii., 1792. K. H. von Römer denied the existence of a general European international law, and sought to give an exposition of German international law. He, in this work, mixed up the relations of the German princes to the emperor, and thus produced a compound of German public law and international law in his book. Das Völkerrecht der Deutschen, 1789. Friedrich von Martins is the most noted representative of this capriciously systematizing school of international law.

II.249.69

—Kant treated of international law at the end of his Rechtslehre, which appeared for the first time in 1797. Kant does not hold strictly to the distinction between international public law and international private law, a distinction which he evidently conceived from the separation of international law proper from cosmopolite law. He starts out with the fiction of natural law, of a state of nature, both of individuals and nations. This state is a state of war, of club-law, a state which must be done away with, and, in the domain of international law, done away with by a confederation of states created to ward off attacks from without. But a universal confederation of states, embracing all nations, is impossible. A multiplicity of confederations existing, there again arises for these, in their relations with one another, a state of nature and a possibility of war. Hence the unattainableness of perpetual peace. But an approximation to perpetual peace may be made by unions of individual states effected to maintain peace among themselves. This subject is treated more fully in Kant's Zum ewigen Frieden. By "cosmopolite law" Kant understands simply the right of every man to have intercourse with all the nations of the earth. (Sich jedem Volke des Erdballs zum Verkchre anzuubieten.)

II.249.70

—Among German Kantists in international law we must mention Pölitz and the elder Zachariä. Pölitz, who was born in 1772 and died in 1834, a professor in Leipzig, devotes much space to international law in his Staatswissenscheften im Lichte unserer Zeit. Karl Salomo Zachariä (born 1769, died 1843), professor in Heidelberg, treats of international law in his Viereig Bücher vom Staate, vol. iv. He works out Kant's idea of a confederation of states for the prevention of war still farther, and gives the notion of cosmopolite right or law more substance.

II.249.71

—An exhaustive disquisition on international law from the Kantian standpoint was furnished by Baroli, professor of philosophy in Pavia, in the fifth and sixth volumes of his Diritto naturale, i.-vi., Cremona, 1837. Of inferior importance is what Tolomei says of international law in his Corso elementare di diritto naturale, i.-iii, Padua, 1848.

II.249.72

—Johann Gotlieb Fichte published an outline of international and cosmopolite law, as a second appendix to his work on natural law which appeared, 1796-7, in two volumes. He follows Kant rather closely, but exposes his doctrines in strictly methodical connection, while on international law we find only detached sentences in Kant.

II.249.73

—The most recent period in the science of law, especially on the continent of Europe, is characterized by a tendency in the direction of the removal of the former enmity between philosophy and history, a direction which found expression in Hegel. Modern authors of works on international law, without being fully conscious and clear that they have been moving in this same direction, take into consideration both the positive and the philosophic-theoretical, which is connected with, is based upon, and frequently transcends, the positive. And when we see some writers treat mainly of the philosophical in international law, simply acknowledging the value of the historical; and others again bestowing their industry chiefly on the historical, and relegating the philosophical to a secondary place; we must seek the explanation of the fact, not so much in a difference of standpoint of the two classes of writers, as in a difference in their intellectual peculiarities and endowments.

II.249.74

—We here give a list of the chief treatises of international law.

II.249.75

—Americans: Henry Wheaton, Elements of International Law, 2 vols., 1836; 2d ed., annotated by W. B. Lawrence, 1863; 8th ed., by Dana, Boston, 1866; W. H. Halleck, International Law, or Rules Regulating the Intercourse of States in Peace or War, San Francisco, 1861; Theodore D. Woolsey, Introduction to the Study of International Law, 4th ed, New York, 1875; Kent, Commentaries on International Law, revised, with Notes and Cases brought down to the present time, by Abdy, Cambridge, 1866.

II.249.76

—Englishmen: Oke Manning, Commentaries on the Law of Nations, 1839; new edition by Sheldon Amos, 1875; Wildham, Institutes of International Law, 1849; Polson, Principles of the Law of Nations, 1854; Travers Twiss, The Law of Nations considered as Independent Political Communities, 2d ed., 1875; Sir Robert Phillimore, Commentaries on International Law, 3 vols. (vol. 4 is devoted to private international law), 2d. ed., 1871.

II.249.77

—Germans: Heffter, Das Europäische Völkerrecht der Genwart auf den bisheregen Grundlagen, 5th ed., 1867, Oppenheim, System des Völkerrechts, 2d ed., 1866; de Martens, Précis du droit des gens modernes de l' Europe augmenté des notes de Pinheiro-Ferreira par Ch. Vergé, Paris, 1864; Huhn, Völkerrecht, volksthümbliche Darstellung, 1864; Bulmerincq, Die Systematik des Volkerrechts, 1 Th., Kritik der Ausführungen und Forschungen zu Gunsten der Systematisirung des positiven Völkerrechts, Dorpat, 1858; Bulmerincq, De Natura principiorum juris inter gentes positici, 1856; Pözl, Grundriss zu Vorlesungen üher Europäisches Völkerrecht; 1852; Mohl. Encyclopadie der Staatswissenschaften, 2d ed., 1872, pp. 402, etc.

II.249.78

—Frenchmen: de Rayneval. Institutions du droit de la nature et des gens, 2d ed., 1832.

II.249.79

—Italians: Romagnosi Introduzione allo studio e diritto pubblico universale, 1838; Ludovico Casanova, Lezioni di diritto pubblico internazionale, 1860, Padova, 1868; Ferrero Gola, Corso di diritto internazionale privato e marittimo, Parma, 1866; Carnazzi Amari, Elementi di diritto internazionale; Avio, Saggis di una teorica giuridica dei rapporti internationali; Fiore, Nouveau droit international public, 1869, Mancini, Diritto internazionale, 1873.

II.249.80

—Spaniards and South Americans: Pando, Elementos del derecho international, 1843; Riquelme, Elementos del derecho internacional espaÑol, 1849; Bello. Principios del derecho internacional, 2d ed., Paris, 1864; C. Calvo (South American) Derecho internacional teorico y practico, 2 vols., 2d ed., 1870.

II.249.81

—Portuguese: Paiva, Elementos do dereito das gentas, 4th ed., 1857; Pinheiro-Ferreira, Cours de droit public interne et externe, Paris, 1830.

K. BRATER.


Notes for this chapter


44.
"This term was originally applied by Bentham to what was previously called the 'law of nations,' and it has been generally received as a more apt designation than that which it superseded. When the term 'law of nations' was in use, that of 'law of peace and war' was sometimes employed as a synonym, and as indicative of the boundaries of the subject. It was thus in its proper sense restricted to the disputes which governments might have with each other, and did not in general apply to questions between subjects of different states, arising out of the position of the states with regard to each other, or out of the divergences in the internal laws of the separate states. But under the more expressive designation, international law, the whole of these subjects, intimately connected with each other as they will be found to be, can be comprehended and examined, and thus several arbitrary distinctions and exclusions are saved. To show how these subjects are interwoven. the following instances maybe taken: A port is put in a state of blockade: a vessel of war of a neutral power breaks the blockade: this is distinctly a question between nations, to be provided for by the law of peace and war, in as far as there are any consuetudinary rules on the subject, and the parties will submit to them. But suppose a merchant vessel belonging to a subject of a neutral power attempts an infringement of the blockade, and is seized—here there is no question between nations in the first place. The matter is adjudicated on in the country which has made the seizure, as absolutely and unconditionally as if it were a question of internal smuggling; and it will depend on the extent to which just rules guide the judicature of that country, and not on any question settled between contending powers, whether any respect will be paid to what the party can plead in his own favor, on the ground of the comity of nations, or otherwise. But there is a third class of cases most intimately linked with these latter, but which are completely independent of any treaties, declarations of war. or other acts by nations toward each other They arise entirely out of the internal laws of the respective nations of the world, in as far as they differ from each other. The 'conflict of laws' is a term very generally applied to this branch of international law, and the circumstances in which it comes into operation are when the judicial settlement of the question takes place in one country. but some of the circumstances of which cognizance had to be taken have occurred in some other country where the law applicable to the matter is different.

—Thus the three leading departments of international law are: 1. The principles that should regulate the conduct of states to each other: 2. The principles that should regulate the rights and obligations of private parties, arising out of the conduct of states to each other, and 3. The principles that should regulate the rights and obligations of private parties, when they are affected by the separate internal codes of distinct nations.

—The first of these has been the principal subject of the well-known works of publicists, who have derived from general principles of morality and justice a series of minute abstract rules for the conduct of nations toward each other, and subsidiarily for the conduct of their subjects in relation to international questions. It has been usual to call this department the 'law of nature,' as well as the law of nations, on the supposition that, though it has not the support of the authority of any legislature, it is founded on the universal principles of natural justice.

—It is clear that thus in its large features, as a rule for the conduct of independent communities toward each other, the law of nations wants one essential feature of that which is entitled to the term law—a binding authority. Nations even the most powerful are not without checks in the fear of raising hostile combinations and otherwise; but there can be no uniformity in these checks; and in general when the interest is of overwhelming importance, and the nation powerful, it takes its own way. The importance of the questions which may be involved in the law of nations thus materially affects the question how far it is uniformly obeyed. In a set of minor questions, such as the safety of the persons of ambassadors, and their exemption from responsibility to the laws of the country to which they are accredited, and in other matters of personal etiquette, a set of uniform rules has been established by the practice of all the civilized world, which are rarely infringed. But in the more important questions, regarding what is a justifiable ground for declaring war, what territory a nation is entitled to the sovereignty of, what is a legitimate method of conducting a war once commenced. etc, the rules of the publicists are often precise enough; but the practice of nations has been far from regular, and has been, as every reader of history knows, influenced by the relative strength of the disputing parties more than by the justice of their cause. The later writers on this subject have from this circumstance directed their attention more to the means by which any system of international law can be enforced, than to minute and abstract statements of what may be theoretical justice, but has little chance of being enforced. They have found several circumstances which have an influence in the preservation of international justice, though of course no sanctions which can give it the uniformity and consistency of internal laws. The combinations for the preservation of what is called the balance of power are among the most useful restrictions of ambition. All periods of history furnish illustrations of this principle. Hume found that the Peloponnesian war was carried on for the preservation of the balance of power against Athens. The late war exhibited a noted illustration of combination to prevent universal conquest on the part of the French. The safety of small states from being absorbed by their larger neighbors, is in the jealousy which these neighbors feel of each other's aggrandizement. Thus the jealousy of rulers is one barrier to national injustice. Another is public opinion: sometimes that of the nation whose rulers would be prepared to commit injustice: sometimes that of other nations. Of course it can only be to a very limited extent that the public feeling of a despotic government can check the grasping spirit of its rulers; but the public feeling of the constitutional and democratic states is the great check on the injustice that might be perpetrated by a nation when it becomes so powerful as Great Britain.

—The seizure of the Danish fleet by the English has been a subject of warm censure in England. Necessity—even the plea that Napoleon would have used the fleet to invade the shores of England—has not been accepted in palliation of the act; and the manner in which it has been canvassed is very likely to prevent any British government from adopting the precedent. The partition of Poland is an instance of national injustice condemned by the public feeling of countries other than those by which it was perpetrated; and it may be questioned whether the states which accomplished the partition may not yet suffer by it. Good fame in the community of nations is like respectability in private circles, a source of power through external support; and the conduct of Russia toward Poland has frequently diverted from the former country the sympathy of free nations. It need scarcely be observed that the press, whether fugitive or permanent, is the most powerful organ of this public opinion, and that the views of able historians, jurista and moralists have much influence in the preservation of international justice. Among the principal subjects of dispute in this department of international law are: the sovereignty of territory and the proper boundaries of states, as in the question regarding the Oregon territory in North America; questions as to discovery and first occupancy of barbarous countries; questions as to any exclusive right to frequent certain seas—and here there is a well-known distinction between the broad ocean and the narrow seas that lie close to particular territories, questions regarding the right of navigation in rivers which may be either between the upper and lower territories, or between states on opposite banks; questions as to the right of harbor or fishing, etc.; and questions as to the right of trading with particular states. In cases of arbitration the national pride is not injured when that which is yielded to is the award of a neutral party, not the demand of an opponent. It has been suggested by Bentham and Mill that the civilized states of the world should establish among themselves a congress. which should adjudicate on all disputes between its members, the members being excluded from voting in their own disputes.

—The second department into which we have considered international law divided—the rights and obligations of individuals as affected by the conduct of states toward each other—has, like the first, been examined by the publicists in their theoretical manner; but it has never, perhaps, received so much practical illustration as it has in the British courts. In a despotic country it would of course scarcely ever occur that the bench should fail to give effect to the national policy of the government, whatever that may be. But in England it was the rule that foreigners as well as natives were entitled to the rigid administration of the law, and that, if the proceedings of the government were at variance with the rights of parties according to the law of peace and war, individuals might have redress. Thus, when Great Britain, in opposition to the Berlin decrees, tried to establish a 'paper blockade,' that is to say, by force of orders in council to declare places to be under blockade, whether there were a force present to support it or not, Sir William Scott found that 'in the very notion of a complete blockade, it is included that the besieging force can apply its power to every point in the blockaded state. If it can not, it is no blockade of that quarter where its power can not be brought to bear'.

—The third division of international law is that which most properly comes under the head 'conflict of laws,' viz. the principles that should regulate the rights and obligations of private parties when they are affected by the separate internal codes of distinct nations. This has some points in common with the preceding department of the subject." (Bohn.)

Footnotes for LAWS

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