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In the latter portion of the last lecture I endeavoured to establish three propositions, which I hold to be extremely important to the intelligent study of International Law. The first of them was that the process by which International Law obtained authority in a great part of Europe was a late st age of the process by which the Roman Law had also obtained authority over very much the saline part of the world. Next, I said that this process had little or no analogy to what is now understood by legislation, but consisted in the reception of a body of doctrine in a mass by specially constituted or trained minds. Lastly, I contended that this doctrine, so spread over Europe, consisted mainly of that part of the Roman Law which the Romans themselves had called Jus Gentium or Jus Naturae -- Law of Nations, or Law of Nature; terms which had become practicably convertible.
The inquiry into the exact meaning of the phrase 'Law of Nature' belongs to a different department of juridical study, and I think it will be sufficient if I briefly summarise the views, themselves considerably condensed, which I published some years ago in a volume from which I quoted in the last lecture. Jus Gentium, or Law of Nations, had not, so I thought, much colour at first of the meaning which it afterwards acquired. It was probably, I said, half as a measure of police, and half in furtherance of commerce, that jurisdiction was first assumed in disputes in which either foreigners, or a native and a foreigner, were concerned. In order to obtain some principles upon which the questions to be adjudicated on could be settled, the Roman praetor peregrinus resorted to the expedient of selecting the rules of law common to Rome and to the different Italian communities in which the immigrants were born. In other words, he set himself to form a system answering to the primitive and literal meaning of Jus Gentium, that is law common to all nations. Jus Gentium was in fact the sum of the common ingredients in the customs of the old Italian tribes. It was accordingly a collection of rules and principles determined by observation to be common to the institutions which prevailed among the various Italian races. Now, it is to be remembered that every Roman of position who followed public life was in the course of his official career not only, so far as his powers went, a statesman, but specially a general and a judge. Speculation upon legal principles manifestly became common among the Roman aristocracy, and in course of time the question suggested itself what was the essential nature of this Jus Gentium which had at first very possibly been regarded as a mere market law. The answer was shaped by the Greek philosophy, which was a favourite subject of study among the class to which the Roman lawyers belonged. Seen in the light of Stoical doctrine the Law of Nations came to be identified with the Law of Nature; that is to say, with a number of supposed principles of conduct which man in society obeys simply because he is man. Thus the Law of Nature is simply the Law of Nations seen in the light of a peculiar theory. A passage in the Roman Institutes shows that the expressions were practically convertible. The greatest function of the Law of Nature was discharged in giving birth to modern International Law and the modern Law of War.
I ought to observe that in this account of the matter probably one correction has to be made. Some acute scholars have examined the authorities since I wrote, and they are inclined to think that very anciently there are some instances of the use of Jus Gentium in a wider and something like its modern sense; that is, law binding on tribes and nations as such. Granting that this is so, still the impression that the Roman Law contained a system of what would now be called International Law, and that this system was identical with the Law of Nature, had undoubtedly much influence in causing the rules of what the Romans called Natural Law to be engrafted on, and identified with, the modern law of nations. When the older Roman sense of the words died out cannot be confidently ascertained, though of course in a world which was divided between two great rival sovereigns, the Roman Emperor and the King of Persia, there was little room for Law of Nations in the true sense of the words.
When, however, at what period, did this Jus Gentium or Jus Natural rise into the dignity which the Roman lawyers give to it? There is a strong probability that this exaltation was not very ancient, but that it took place during the period, roughly about three hundred years, covered by the so-called Roman Peace. That Peace extended from the time at which the Roman Empire was settled by the success of Augustus over all his enemies to the early years of the third century. The Roman Law transformed a large number of the ideas of a great portion of the world; but its own transformation from a technical to a plastic system was one of the results of the so-called Roman Peace. If we want to know what war is, we should study what peace is, and see what the human mind is when it is unaffected by war. We should study the Korean Peace, during which the existing legal conception of the relation of the sexes framed itself; during which the Christian Church was organised, and during which the old Law of Nations or Nature transformed itself into an ideal system specially distinguished by simplicity and symmetry, and became a standard for the legal institutions of all systems of jurisprudence.
The second proposition for which I argued is one of very considerable importance. It was that the Law of Nations, as framed by the jurists who were its authors, spread over the world not by legislation, but by a process of earlier date. On the appreciation of this position depends not only the view taken of the Law of Nature and of the application of International Law, but also certain practical consequences which nay be momentous; and at a quite recent date our country was in danger of adopting an opinion which would have separated it from the rest of the civilised world, and from which it could only be saved by correct ideas on this very point.
In order that you may convince yourselves what might be the consequences of demanding a legislative sanction, or a sanction derived from an authority on a level with that of a modern legislature, for the rules of International Law, I recommend you to compare the view of it taken by the statesmen and jurists of the United States of America with that to which this country might have committed itself; and from which it was delivered by the direct intervention of Parliament. The United States are particularly worth examining in regard to the point before us, because they were an instance of a new nation deliberately setting itself to consider that new obligations it had incurred by determining to take rank as a state. Italy is another and a later example, and there have been some others in South America, but all these societies, made up from smaller pre-existing territorial materials, were greatly influenced by the example of the American Federal Union. The doctrines which the United States adopted may be gathered from some very valuable volumes which the American Government has quite recently caused to be published, and to which I will presently call your attention. The systematic American writers on International Law are less instructive on the points which I am going to place before you than these books, because they usually follow the order of topics taken up by older European writers. But I will quote a passage from one of the most careful and sober of writers, Chancellor Kent, and also from a writer who unhappily died the other day, and whose productions were much valued in the United States -- Mr. Pomeroy. You will have to recollect that the question at issue between the English and Americans lawyers was less what is the nature of International Law, and how it arose, than the question how, and to what extent, have its rules become binding on independent states. These questions are often confounded together, or found to be indissoluble, as will be plain from the extracts which I am about to read.
There has been a difference of opinion among, writers concerning the foundation of the Law of Nations. It has been considered by some as a mere system of positive institutions, founded upon consent and usage; While others have insisted that it was essentially the same as the Law of Nature, applied to the conduct of nations, in the character of moral persons, susceptible of obligations and laws. We are not to adopt either of these theories as exclusively true. The most useful and practical part of the Law of Nations is, no doubt, instituted or positive law, founded on usage, consent, and agreement. But it would be improper to separate this law entirely from natural jurisprudence, and not to consider it as deriving much of its force and dignity from the same principles of right reason, the same views of the nature and constitution of man, and the same sanction of Divine revelation, as those from which the science of morality is deduced. There is a natural and a positive Law of Nations. By the former, every state, in its relations with other states, is bound to conduct itself with justice, good faith, and benevolence; and this application of the Law of Nature has been called by Vattel the necessary Law of Nations, because nations are bound by the Law of Nature to observe it; and it is termed by others the internal Law of Nations, because it is obligatory upon them in point of conscience. We ought not, therefore, to separate the science of public law from that of ethics, nor encourage the dangerous suggestion that governments are not so strictly bound by the obligations of truth, justice, and humanity, in relation to other powers, as they are in the management of their own local concerns.
States, or bodies politic, are to be considered as moral persons, having a public will, capable and free to do right and wrong, inasmuch as they are collections of individuals, each of whom carries with him into the service of the community the same binding law of morality and religion which ought to control his conduct in private life. The Law of Nations is a complex system, composed of various ingredients. It consists of general principles of right and justice, equally suitable to the government of individuals in a state of natural equality, and to the relations and conduct of nations; of a collection of usages, customs, and opinions, the growth of civilization and commerce; and of a code of positive law.
In the absence of these latter regulations, the intercourse and conduct of nations are to be governed her principles fairly to deduced from the rights and duties of nations, and the nature of moral obligation; and we have the authority of the lawyers of antiquity, and of some of the first masters in the modern school of public law, for placing the moral obligation of nations and of individuals on similar grounds, and for considering individual and national morality as parts of one and the same science. The Law of Nations, so far as it is founded on the principles of Natural Law, is equally binding in every age and upon all mankind. But the Christian nations of Europe, and their descendants on this side of the Atlantic, by the vast superiority of their attainments in arts, and science, and commerce, as well as in policy and government; and. above all, by the brighter light, the more certain truths, and the more definite sanction which Christianity has communicated to the ethical jurisprudence of the ancients, have established a Law of Nations peculiar to themselves. They form together a community of nations united by religion, manners, morals, humanity, and science, and united also by the mutual advantages of commercial intercourse, by the habit of forming alliances and treaties with each other, of interchanging ambassadors, and of studying and recognising the same writers and systems of public law.
This Jus Gentium of the Imperial jurisconsults is identical with the Law of Nature, or Natural Law, of many modern ethical and juridical writers; and both are, in fact, the law of God, made known somewhat dimly to the whole human race at all times, and set forth with unmistakable certainty and transcendent power in His revealed will. This is, in truth, the highest law by which moral beings can be governed; highest in its Lawgiver, who is omnipotent over each individual man, as well as over societies and states; highest in the absolute perfection of the rules which it contains; highest in the absolute cogency of the commands which it utters; highest in the absolute obligation of the duties which it enforces; highest in the absolute certainty and irresistible coercive power of the sanctions which it wields, and which operate upon the deepest spiritual nature of every human being.
It must be clear to you, I think, that writers who adhere to these opinions are not likely to trouble themselves greatly with the question of the original obligatory force of International Law. If the Law of Nations be binding on states considered as moral beings on account of its derivation from the Law of Nature or of God, states when in a healthy moral condition will defer to them as individual men do to the morality of the Ten Commandments. The whole question in fact, as laid down by liens, and with less moderation by Pomeroy, is a question of ethics, and all demand of a legislative sanction may be discarded. But now let us turn to the four volumes of the American International Digest edited by Dr. Francis Wharton. It is entitled, 'A Digest of the International Law of the United States,' and it consists of documents relating to that subject issued by Presidents and Secretaries of State, of the decisions of Federal Courts, and of the opinions of Attorneys-General. Among the propositions laid down in these volumes you will find the following, all of them accepted by the American Federal Government.
'The law of the United States ought not, if it be avoidable, so to be construed as to infringe on the common principles and usages of nations and the general doctrines of International Law. Even as to municipal matters the law should be so construed as to conform to the Law of Nations, unless the contrary be expressly prescribed. An Act of the Federal Congress ought never to be construed so as to violate the Law of Nations if any other possible construction remains, nor should it be construed to violate neutral rights or to affect neutral commerce, further than is warranted by the Law of Nations as understood in this country.' Again: 'The Law of Nations is part of the Municipal Law of separate states. The intercourse of the United States with foreign nations and the policy in regard to them being placed by the Constitution in the hands of the Federal Government, its decisions upon these subjects are by universally acknowledged principles of International Law obligatory on everybody. The Law of Nations, unlike foreign Municipal Law, does not have to be proved as a fact. The Law of Nations makes en integral part of the laws of the land. Every nation, on being received at her own request into the circle of civilised government, must understand that she not only attains rights of sovereignty and the dignity of national character, but that she binds herself also to the strict and faithful observance of all those principles, laws, and usages which have obtained currency amongst civilised states, and which have for their object the mitigation of the miseries of war. International Law is founded upon natural reason and justice, the opinions of writers of known wisdom, and the practice of civilised nations.'
Here you see that according to American doctrine International Law has precedence both of Federal and of Municipal Law, unless in the exceptional case where Federal Law has deliberately departed from it. It is regarded by the American lawyers as having very much the same relation to Federal and State Law as the Federal Constitution has, and this no doubt is the reason why in so many famous American law books Constitutional Law and International Law are the first subjects discussed, International Law on the whole having precedence of Constitutional Law.
The principle on which these American doctrines of International Law repose is, I think, tolerably plain. The statesmen and jurists of the United States do not regard International Law as having become binding on their country through the intervention of any legislature. They do not believe it to be of the nature of immemorial usage, 'of which the memory of man runneth not to the contrary.' They look upon its rules as a main part of the conditions on which a state is originally received into the family of civilised nations. This view, though not quite explicitly set forth, does not really differ from that entertained by the founders of International Law, and it is practically that submitted to, and assumed to be a sufficiently solid basis for further inferences, by Governments and lawyers of the civilised sovereign communities of our day. If they put it in another way it would probably be that the state which disclaims the authority of International Law places herself outside the circle of civilised nations.
There is, however, one community which on one occasion went near to dissenting from the American opinion and from the assumptions which it involves. This was our own country, Great Britain. In one celebrated case, only the other day, the English judges, though by a majority of one only, forged their decision on a very different principle, and a special Act of Parliament was required to re-establish the authority of International Law on the footing on which the rest of the world had placed it. The case was one of great importance and interest, and it was argued before all the English judges in the Court of Criminal Appeal. It is known as the Queen v. Keyn, but is more popularly called the 'Franconia' Case (2 Ex. Div. 63). The 'Franconia,' a German ship, was commanded by a German subject, Keyn. On a voyage from Hamburg to the West Indies, when within two and a half miles from the beach at Dover, and less than two miles from the head of the Admiralty pier, the 'Franconia,' through the negligence, as the jury found, of Keyn, ran into the British ship 'Strathclyde,' sank her, and caused the death of one of her passengers. Keyn was tried for manslaughter, and was convicted at the Central Criminal Court; but the question then arose whether he had committed an offence within the jurisdiction of English tribunals.
The point on which that question turned was this. All the writers on International Law agree that some portion of the coast water of a country is considered for some purposes to belong to the country the coasts of which it washes. There is some difference of opinion between them as to the exact point to which this territorial water, which is considered as part of a country's soil, extends. This doctrine, however, if it were sound, must at some time or other have been borrowed by the English courts and lawyers from international authority. Previous to the appearance of International Law, the law followed in England was different. The great naval judicial authority was then the Admiral of England, whose jurisdiction was over all British subjects and other persons on board British ships on the high seas. If the doctrine of the international jurists prevailed, a change must, at some time or other, have taken place in the law, and the point arose as to whether any such change could be presumed, and by what agency it could have been effected. The judges were very nearly equally divided on the point, which is a fundamental one affecting the whole view to be taken of the authority of International Law in this country. In the end it was decided by the majority of the judges that no sufficient authority was given for the reception in this country of the so-called International doctrine; but there was no question that this doctrine was the doctrine of the majority of states, and the inconvenience of having one rule for England and another for the rest of the civilised world was palpably so great that Parliament finally stepped in, and in the year 1878 passed what is called the 'Territorial Waters Act,' by which the jurisdiction of the English Courts which had succeeded to the jurisdiction of the Admiral of England was declared to extend according to the International rule to three miles from the coast line of England. In the course of the judgments which were given, which are extremely learned, curious, and interesting, Lord Coleridge. who was with the minority of the judges, used the following language:
'My brothers Brett and Lindley have shown that by a consensus of writers, without one single authority to the contrary, some portion of the coast waters of a country is considered for some purposes to belong to the country the coasts of which they wash. I concur in thinking that the discrepancies to be found in these writers as to the precise extent of the coast waters which belong to a country discrepancies, after all, not serious since the time at least of Grotius are not material in this question; because they all agree in the principle that the waters, to some point beyond low-water mark, belong to the respective countries on grounds of sense if not of necessity, belong to them as territory in sovereignty, or property, exclusively, so that the authority of France or Spain, of Holland or England, is the only authority recognised over the coast Raters which adjoin these countries. This is established as solidly as by the very nature of the case any proposition of International Law can be. Strictly speaking, "International Law " is an inexact expression, and it is apt to mislead if its inexactness is not kept in mind. Law implies a lawgiver, and a tribunal capable of enforcing it and coercing its transgressors. But there is no common lawgiver to sovereign states; and no tribunal has the power to bind them by decrees or coerce them if they transgress. The Law of Nations is that collection of usages which civilised states have agreed to observe in their dealings with one another. What these usages are, whether a particular one has or has not been agreed to, must be matter of evidence. Treaties and acts of state are but evidence of the agreement of nations, and do not in this country at least per se bind the tribunals. Neither, certainly, does a consensus of jurists; but it is evidence of the agreement of nations on international points; and on such points, when they arise, the English Courts give effect, as part of English law, to such agreement' (p. 153).
Lord Chief Justice Cockburn, on the other hand, after discussing at length the views of thirty writers of different countries and commenting on the difference between them, goes on to remark: 'Can a portion of that which was before high sea have been converted into British territory without any action on the part of the British Government or Legislature -- by the mere assertions of writers on public law -- or even by the assent of other nations? And when in support of this position, or of the theory of the three-mile zone in general, the statements of the writers on International Law are relied on, the question may well be asked, upon what authority are these statements founded? When and in what manner have the nations, who are to be affected by such a rule as these writers, following one another, have laid down, signified their assent to it? -- to say nothing of the difficulty which might be found in saying to which of these conflicting opinions such assent had been given' (p. 202).
It would appear, therefore, from the authorities which I have cited that in the two great English-speaking people of the world, one descended from the other, there prevail two, and possibly three, opinions as to the obligatory force of International Law on individual states. The lawyers and statesmen of the United States of America regard the acknowledgment of and submission to the international system as duties which devolve on every independent sovereignty through the fact of its being admitted into the circle of civilized Governments. Among the English judges, Lord Coleridge considers that the assent of a nation is necessary to subject it to International Law, but that in the case of Great Britain and all the other civilised European Powers this assent has been given either by express action or declaration, or at all events by non-dissent. Lastly, Lord Chief Justice Cockburn, while accepting the view that International Law became binding on states by their assent to it, manifestly thought that this assent must somehow be conveyed by the acquiescing state in its sovereign character, through some public action which its Constitution recognizes as legally qualified to adopt a new law or a new legal doctrine; that is, in Great Britain by Act of Parliament or by the formal declaration of a Court of Justice. The two opinions which I first mentioned, that over and over again propounded in the American Digest and that of Lord Coleridge, though the language used is somewhat inexact and in one case too metaphorical, seem to me to express the doctrine of the whole civilised world outside Great Britain, and to conform to the historical explanation which I will presently place before you. On the other hand, the opinion of Lord Chief Justice Cockburn, which is one to which English judges, always busily occupied in interpreting and applying the laws of this country, are naturally liable, would have caused the greatest inconvenience if it had been declared to be part of the law of England. It practically is that the international rules could only have been imported into our system by one of the modern processes by which our institutions are changed. In that case each separate alleged rule of International Law would have had to be shown to have been engrafted on our legal system by the legislation of Parliament, by the alternative legislation, within certain limits, of the English Courts, or by the conformity of the rule with some provable usage. For a simple rule a most complicated rule would have been substituted.
The point immediately before the English Court of Criminal Appeal can never arise again since the passing of the Territorial Waters Act; but it is conceivable, if not likely, that we have not heard the last of the more general question of principle. I may say that it seems to me that the solution of the difficulty can only be supplied by the historical method. As I have asserted many times, these systems of law have not always been extended over the countries in which they are found prevailing by what we call legislation. In more ancient times, and to a great extent even at this day, in that Eastern portion of the world in which so much of the usages of earlier mankind still survive, systems of religion and systems of morals, generally drawing with them some system of laws, gain currency by their own moral influence; certain minds being naturally predisposed to recede them acquiesce in them even with enthusiasm. Mr. Justice Stephen, in the controversial work which he calls 'Liberty, Equality, and Fraternity,' has an eloquent passage on the subject. 'The sources of religion lie hid from us. All that we know is, that now and again in the course of ages some one sets to music the tune which is haunting millions of ears. It is caught up here and there, and repeated till the chorus is thundered out by a body of singers able to drown all discords and to force the vast unmusical mass to listen to them. Such results as these come not by observation, but when they do come they carry away as with a flood and hurry in their own direction all the laws and customs of those whom they affect.' What is here said of religion, is true to a certain extent of morality. In the East a body of new moral ideas is sure in time to produce a string of legal rules; and it is said by those who know India and its natives well that the production of what for want of a better name we must call a Code is a favourite occupation with learned and active minds, though of course in a country which nowadays follows to a great extent the morality (though not the faith) of Christian Europe, and receives new laws from a regularly constituted Legislature, the enthusiasm for new moral doctrines is ever growing feebler and the demand for legal rules accommodated to them is becoming less. Now, International Law was a Code in the same sense in which many Eastern collections of rules were Codes. It was founded on a new morality, that which had been discovered in the supposed Law of Nature, and in some minds it excited unbounded enthusiasm.
The same process had previously been followed in Europe as regards Roman Civil Law. We may not quite understand the admiration which the technical part of the Roman Law inspired, but of the fact there is no doubt. This process by which laws extended themselves had not quite died out when the international jurists appeared, and in point of fact their system of rules was received by the world very much as a system of law founded on morals is received to this day in the East. No doubt it fell on soil prepared for it. The literate classes, the scholars, great parts of the clergy, and the sovereigns and statesmen of Europe accepted it, and the result was an instant decay of the worst atrocities of war. Indeed, it is only necessary to look at the earliest authorities on International Law, in the 'De Jure Belli et Pacis' of Grotius for example, to see that the Law of Nations is essentially a moral and, to some extent a religious, system. The appeal of Grotius is almost as frequent to morals and religion as to precedent, and no doubt it is these portions of the book, which to us have become almost commonplace or which seem irrelevant, which gained for it much of the authority which it ultimately obtained.
The bulk of these lectures will consist of an account, as summary as I can make it, of such portions of the International system as appear to me to be reasonably settled; but before I proceed to this portion of my course, I think I ought to say something on some modern criticisms of the basis of International Law which have made their appearance quite recently, and which I think have a tendency to multiply. The criticisms to which I refer appear to me to be a singular proof of the great authority which in our day has been obtained by the treatise of John Austin on the Province of Jurisprudence. They are in fact to a considerable extent a re-statement of his positions. The scope of Austin's undertaking in this classical work is often nowadays exaggerated. He attempted, by analysis of the various conceptions which law in its various senses includes, to select one sense of law in which legal generalizations were possible. His ultimate object appears to have been to effect a scientific rearrangement of law as a Code. Little unfortunately has been done at present, save perhaps in the German Empire and in India, to carry out this object; but no doubt Austin did do something towards the ultimate codification of positive law by confining his investigation to the various subordinate conceptions which make up law as so understood. As probably many of you know, his fundamental assertion is that in every country there is some portion of the community which can force the rest to do exactly what it pleases. This is called by him the 'Sovereign,' a word on which it is necessary as soon as possible to observe that it is here taken in a different sense from that in which it is employed by the classical writers on International Law. From Austin's point of view International Law resembled morality more than law; it was chiefly enforced by disapprobation of acts committed in violation of it; it could not be resolved into the command of any sovereign.
In my next lecture, I shall contrast this word 'Sovereignty' as used by Austin and the so-called school of analytical jurists with its use in International Law, and specially consider the rights over land and water which are asserted by international lawyers to arise logically from the conception of Sovereignty.
In my first lecture I spoke of the criticisms on International Law conducted by John Austin in his 'Province of Jurisprudence Determined' as very interesting and quite innocuous; but the results are sometimes so stated as if they showed that Austin had intended to diminish, and had succeeded in diminishing, the dignity or imperative force of International Law. An observation here must be made that one sense of law is just as good and dignified as another, if it be only consistently used. In philosophy the commonest sense of law is that in which it is used by such writers as the author of the book called 'The Reign of Law.' No term can be more dignified or more valuable than 'law' as thus employed. What we have to do, is to keep this meaning of law separate in our minds from law in other senses. It is very convenient, when the main subject of thought is positive law, that we should remember that International Law has but slender connection with it, and that it has less analogy to the laws which are the commands of sovereigns than to rules of conduct, which, whatever be their origin, are to a very great extent enforced by the disapprobation which attends their neglect. What is most important to recollect are the points of collection which do exist between International Law and positive law.
Here one cannot but remark that a serious mistake as to human nature is becoming common in our day. Austin resolved law into the command of a sovereign addressed to a subject, and always enforced by a sanction or penalty which created an imperative duty. The most important ingredient brought out by this analysis is the sanction. Austin has shown, though not without some straining of language, that the sanction is found everywhere in positive law, civil and criminal. This is, in fact, the great feat which he performed, but some of his disciples seem to me to draw the inference from his language that men always obey rules from fear of punishment. As a matter of fact this is quite untrue, for the largest number of rules which men obey are obeyed unconsciously from a mere habit of mind. Men do sometimes obey rules for fear of the punishment which will be indicted if they are violated, but, compared with the mass of men in each community, this class is but small -- probably, it is substantially confined to what are called the criminal classes -- and for one man who refrains from stealing or murdering because he fears the penalty there must be hundreds or thousands who refrain without a thought on the subject. A vast variety of causes may have produced this habit of mind. Early teaching certainly has a great deal to do with it; religious opinion has a great deal to do with it; and it is very possible, and indeed probable, that in a vast number of cases it is an inherited sentiment springing from the enforcement of law by states, and the organs of states, during long ages. Unfortunately it has been shown in our day that the mental habit, so far as regards positive civil and criminal law, may be easily destroyed by connivance at violations of rule; and this is some evidence of its having a long descent from penal law once sternly enforced.
What we have to notice is, that the founders of International Law, though they did not create a sanction, created a law-abiding sentiment. They diffused among sovereigns, and the literate classes in communities, a strong repugnance to the neglect or breach of certain rules regulating the relations and actions of states. They did this, not by threatening punishments, but by the alternative and older method, long known in Europe and Asia, of creating a strong approval of a certain body of rules. It is quite true that some of the reasons given by Grotius for International Law would not now commend themselves if they were presented to the mind for the first time; but it does not do to look too far back into the origins of law for the reasons of its establishment. Much of the beginnings of English Law is to be found in the Year Books; but it would not be too harsh to say that some of the reasons given for rules now received, which are to be found in the Year Books, are mixed with a great deal of sheer nonsense. The original reasons for the International rules are possibly to some extent nonsense: they often seem to us commonplace, they are often rhetorical, they are often entangled with obsolete theories of morals or deductions from irrelevant precedents, and on the other hand they often assume a power of discerning what the Divine pleasure is on a particular subject which the ideas of the present day would not admit. As to their expediency, that has to be decided by experience, and experience has, on the whole, pronounced decisively in their favour.
There are, however, at the same time some real defects in International Law which are traceable to the difference between that law and positive law, and the absence of mechanism by which positive law is developed. International Law was not declared by a Legislature, and it still suffers from want of a regular Legislature to improve and to develop it. It is still developed by the antiquated method of writer commenting on writer, no security being nowadays taken for the competence or authority of the writer except vague opinion. There are really writers who through confusedness, or through natural prejudice, are open to the implied censure of Dr. Whewell that they have rather encouraged than diminished the risk and the evils of war. International Law suffers also from the absence of any method of authoritatively declaring its tenor on some of its branches, and above all from the absence of any method of enforcing its rules short of war or fear of war. All these are real and often formidable drawbacks on the usefulness of International Law,and no teacher of International Law can neglect them. Before the end of this course, though not quite immediately, I propose to examine them, and to consider whether the grooving experience of civilised mankind points to any new remedies or better means of enforcing old ones.