Henry MaineIntroductionLecture I : Its Origin and SourcesLecture II : Its Authority and SanctionLecture III : State SovereigntyLecture IV : Territorial Rights of SovereigntyLecture V : Naval or Maritime BelligerencyLecture VI : The Declaration of ParisLecture VII : The Mitigation of WarLecture VIII : The Modern Laws of WarLecture IX : Rules as to Prisoners and QuarterLecture X : Mentions of Belligerents on LandLecture XI : Rights of Capture by LandLecture XII : Proposals to Abate War IntroductionINTERNATIONAL LAW A SERIES OFLECTURES DELIVERED BEFORE THEUNIVERSITY OF CAMBRIDGE1887BY HENRY SUMNER MAINE, K.C.S.I.LATE MASTER OF TRINITY HALL, CAMBRIDGE, ANDMEMBER OF THE INDIAN COUNCILTHE WHEWELL LECTURESSECOND EDITIONNEW IMPRESSIONLONDONJOHN MURRAY, ALBENARLE STREET, W.1915NOTICE.The following Lectures were delivere">

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Henry Maine's International Law(1)
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International Law

 

Henry Maine


Introduction
Lecture I : Its Origin and Sources
Lecture II : Its Authority and Sanction
Lecture III : State Sovereignty
Lecture IV : Territorial Rights of Sovereignty
Lecture V : Naval or Maritime Belligerency
Lecture VI : The Declaration of Paris
Lecture VII : The Mitigation of War
Lecture VIII : The Modern Laws of War
Lecture IX : Rules as to Prisoners and Quarter
Lecture X : Mentions of Belligerents on Land
Lecture XI : Rights of Capture by Land
Lecture XII : Proposals to Abate War

 

Introduction

INTERNATIONAL LAW

A SERIES OF
LECTURES DELIVERED BEFORE THE
UNIVERSITY OF CAMBRIDGE
1887
BY HENRY SUMNER MAINE, K.C.S.I.
LATE MASTER OF TRINITY HALL, CAMBRIDGE, AND
MEMBER OF THE INDIAN COUNCIL
THE WHEWELL LECTURES
SECOND EDITION
NEW IMPRESSION
LONDON
JOHN MURRAY, ALBENARLE STREET, W.
1915
NOTICE.
The following Lectures were delivered before the University of Cambridge, in Michaelmas Term 1887, by the late Sir Henry S. Maine, then Professor of International Law on the foundation of Dr. Whewell. They are printed from the manuscript, partly written in his own hand, and throughout corrected by him for delivery, but not prepared for publication. The sheets have been passed through the press by Mr. Frederic Harrison and Mr. Frederick Pollock, both of Lincoln's Inn, who were appointed two of Sir H. Maine's executors. They have not thought it their duty in any way to alter the draft of the Lectures, except so far as was needed to clear the sense of an occasional passage, which in the copy as it stood was obscure or plainly defective. Titles to the Lectures and an Index have also been added.

LINCOLN'S INN: September. 1888.

Lecture I : Its Origin and Sources

LECTURE I.
ITS ORIGIN AND SOURCES.
The eminent man who founded the Whewell Professorship of International Law laid an earnest and express injunction on the occupant of this chair that he should make it his aim, in all parts of his treatment of the subject, to lay down such rules and suggest such measures as might tend to diminish the evils of war and finally to extinguish war among nations.

These words of Dr. Whewell, which occur in his vill and in the statute regulating his professorship, undoubtedly contain both a condemnation and a direction. International Law in its earlier stages was developed by a method of treatment which has been applied to many important subjects of thought when their growth has reached the point at which they are included in books to theology, to morals, and even, in some cases, to positive private law. Writers of authority who have gained the ear of the learned and professional classes follow one another in a string, each commenting on his predecessor, and correcting, adding to, or devising new applications for, the propositions he has laid down. For a considerable time International Law, as the words are commonly understood, had to be exclusively collected from the dicta of these authoritative writers, who, however, differed from one another materially in their qualities and defects. At the head and at the foot of the list two names are often conventionally placed, first that of Grotius, who was born in 1583, and died in 1645, and last that of Vattel, who was born in 1714 and died in 1767. Of both these writers it may be confidently asserted that the rules and propositions which they laid down did tend to diminish the evils of war and may possibly help to extinguish some day war among nations. But of the residue of this class of publicists, it must be confessed that some were superficial, some learned and pedantic, some were wanting in clearness of thought and expression, some were little sensitive to the modifications of moral judgment produced by growing humanity, and some were simply reactionary. As these lectures proceed I may be able to point out to which class, and for what reasons, the writer immediately before us belongs.

Meantime I may be allowed to pause and say that at first sight it seems hopeless to discharge in our day the responsibility which Dr. Whewell has laid on his professor. What teacher of Law, public or Private, considering what we see around us, can hope to suggest the means of controlling, and still less of weakening and destroying, the prodigious forces which seem now to make for war? The facts and the figures alike appear to point to an enormous growth of these forces in volume and strength. The middle year of this century was the thirty-fifth of the long peace which began in 1815 -- a peace which was not quite unbroken, for there were some intervals of petty local war, but which was as long as any which existed since Modern Europe began, and a peace which was fruitful in every sort of remarkable result. That generation may be said to have had a dream of peace. It looked forward to a time when, in the words of the great poet who was then beginning to exercise influence over it, 'The war drum should beat no longer and the battle flag should be furled.' And in 1851 an event occurred which has since then been somewhat vulgarized by repetition, the establishment of the first of the Exhibitions of Art and Industry. It seriously added to the belief that wars had ceased; strife in arms was to be superseded by competition in the peaceful arts, controversy was to be conducted by literary agencies and no longer by arms. As a poet and prose-writer then still living put it, 'Captain Pen had vanquished Captain Sword.'

But the buildings of this Temple of Peace had hardly been removed when war broke out again, more terrible than ever. First came the Crimean War in which this country was a principal belligerent; then followed the frightful struggle of the Indian Mutiny in which England was solely concerned. Shortly afterwards the Government of the new French Empire attacked the Governments established in Italy by the Treaty of Vienna, and soon the whole of the Italian arrangements set up by that Treaty were destroyed. Before long, the United States of America, supposed to be preserved from war by a sort of homely common sense, were torn asunder by the war of secession, which, proportionately to its continuance, was the costliest and bloodiest of wars. In no long time the German arrangements which were established at Vienna fell in pieces through a quarrel between the chief German powers, Almost the other day there came the French and German war and the struggle between the Russians and the Turks -- contests which unveiled the bases of quarrels of which we have not seen the end: namely, the historical rivalry between the French and Germans, and the most hopeless of all the problems which the civilised world has to solve, the contest provoked by the inevitable break-up of the Turkish Empire.

The immediate causes of these wars can of course be traced; but to believers in the permanent return of peace they were a bitter deception. Even more alarming than the return of war was the intrusion of war into peace. After the defeat of Jena, the limitation of their army which the Emperor Napoleon forced upon the Prussians produced a system of which the effect was to teach the Western world a new method of military organization. The whole population of a country was passed through the ranks of armies. As in the most ancient days, the young men primarily fought, after them came the next above them in age, after these their elders; all of them knew, and now know, the use of arms, and nobody escapes the necessity for fighting in particular contingencies, except either the very old or the very young. The figures are exceedingly astonishing. When Russia was rising to the height of military reputation which she gained in 1812 and 1813, she had always a difficulty in bringing as many as 100,000 men into the field; now she is said to contain six millions of armed men. The most energetic effort which was ever made by France to arm her population was in 1813, after the retreat from Moscow and before Napoleon's surprising campaigns within the limits of France herself were commenced. The number of men which Napoleon with all his lieutenants led to combat from France, Italy, and the Confederation of the Rhine (to which were added the disengaged garrisons of French soldiers) was almost exactly equal to the number of men which France at this moment regards as that of her army when on a strictly peace footing.

'War,' says Grotius, in a remarkable passage in which he shows his dissent from the opinions of the preceding age, 'war is not an art.' Nowadays not only is it an art requiring a long apprenticeship and equipped with a multitude of precise rules, but besides this it is the mother of new arts. The whole science and art of explosives, which has occupied the inventive genius of civilised lands for about twenty years, is of warlike origin; and an apparently most peaceful art, hydraulic engineering, is said to owe its remarkable modern development to the study of the means of lifting and working great naval guns. Guns of long range were first tried in the field during the Crimean war, when they were on the whole pronounced to be a costly failure. But we have some very remarkable evidence at this moment of what they have come to, supplied partly by a Committee of the House of Commons appointed to consider the army estimates, and partly by the report of a Royal Commission appointed to investigate the subject of naval patterns, or in other words, the mode in which new inventions are dealt with by the civil and military officers of our government. The Director-General of Artillery stated to the Parliamentary Committee that the increase in army estimates which was due to the advance of military science, began in 1882-83, when breech-loading guns were finally adopted. The cost of the steel gun was a third more than that of the old wrought-iron tube, but this cost increased till in the case of the 100-ton gun it exceeded 19,000 l., while the cost of the projectile, which once was rather over 7 l., now reaches at least 150 l. All the treasure and all the labour and all the skill expended nowadays on ships and fortifications appear to end in this. Each of the most modern guns is likely to cost 20,000 l. It fires a charge of powder and shot weighing about a ton and a quarter. Each charge costs 150 l. It thus happens that one of the large guns used in the ships in which the great naval victories of England were won at the end of the last century and the beginning of the present did not cost much more than a few charges of powder and shot fired off in a gun of the present day. Nor is this all the story. After a gun of the present day has fired 150 shots it is so damaged by the labour and strain it has undergone that it must be repaired. This short effective existence is the result of the extreme delicacy with which it has been endowed by modern art. I repeat, then, my question when the forces at work are so enormous, how shall they be controlled, diminished, or reduced by a mere literary agency?

Some consolation may be found in a position which it is all the more necessary to insist upon because it is not quite in harmony with the assumptions made by some famous writers, presently to be discussed, who are more associated than any others with the origin of International Law. Most of them thought that mankind had started from a condition of innocent peace. It was man's depravity which had interrupted this state and had produced virtually universal and unceasing war. There can be no question that this proposition reverses the truth. It is not peace which was natural and primitive and old, but rather war. War appears to be as old as mankind, but peace is a modern invention. Our intelligence is only just beginning to enable us to penetrate the clouds which rest on the farther verge of history, but what does seem clear to trained observation is the universal belligerency of primitive mankind. Not only is war to be seen everywhere, but it is war more atrocious than we. with our ideas, can easily conceive.

Take one example, the practices concerned with the treatment of the wounded and of prisoners. At first there are signs which cannot be mistaken that the prisoner and the wounded man are not only killed but tortured before being put to death. The still savage races from whom most has been learned as to the original usages and conditions of men are the North American Indians and the aborigines of Australia. That the North American Indians tortured their prisoners before putting them to death is one of a number of facts very familiar to us which have made their way into literature. One branch of this race, the Mexicans, attained to a certain degree of civilization, but it is also matter of familiar knowledge that the Mexicans put their prisoners to death with the greatest cruelty almost in hecatombs, and that the practice with them had acquired a religious sanction. As to the Australians, it has been observed that they have inherited the animal instinct which leads them even to torture their game after it is captured and before it is killed. The English school-boy has often been shocked by the concluding passage in a Roman triumph when the gallant enemy, who had been led in the procession, was not only killed but flogged. When we come to medieval war these cruelties have disappeared, and, though the suffering of the wounded and of prisoners was great, it seems to have been due rather to ignorance and carelessness than to cruelty. It is said that at the battle of Agincourt only one man who had any knowledge of medicine or surgery was present, the functionary who was the predecessor of the official now known as the King's Staff Surgeon.

The only influences which at the beginning of history seem to put an end to war on a large scale are influences which have been much maligned and to which some injustice has been done. The conventionally revised history of the world begins with the formation of certain great empires, the Egyptian, the Assyrian, the Median, and the Persian. No doubt they were a result rather of man's rapacity than of his humanity. The object of their founders was to gratify ambitious display on a great scale and to increase the area from which they could take their taxes; but nevertheless no one could say how much war they extinguished by the Prohibition, which they undoubtedly carried out, of hostilities among the various sub-divisions of their subjects. The latest of these Empires which conferred similar benefits on mankind in the West was the Roman Empire. During the long Roman peace not only did bloodshed practically cease, but the equality of the sexes, the mitigation of slavery, and the organization of Christianity made their appearance in the world. When, however, one of these empires breaks up, the old suffering revives. 'Give peace in our time, O Lord,' is a versicle in the Anglican Liturgy which is said to date from the rupture of the Empire, that is from the time when the Empire was breaking up into kingdoms occupied by barbarian races. It is obviously a prayer for an unusual and unhoped-for blessing. In the East the amount of bloodshed prevented by the Chinese Empire is incalculable. Independently of any other benefits, which the Indian Empire may confer on the collection of countries which it includes, there is no question that were it to be dissolved, or to fall into the hands of masters unable to govern it, the territories which make it up would be deluged with blood from end to end. As the history of modern Europe proceeds there are moments when old controversies seem to have been exhausted and fighting is to a certain extent relaxed, but then some great difference arises between men -- the wars of religion, for example, commence -- and Europe is again full of bloodshed.

There are other facts at first sight of smaller apparent importance which are too little noticed. At all times, amid truculent wars ever reviving, there are signs of a conscious effort to prevent war or to mitigate it. Man has never been so ferocious, or so stupid, as to submit to such an evil as war without some kind of effort to prevent it. It is not always easy to read the tokens of his desire and endeavour to obviate war or to diminish its cruelties; it takes some time to interpret these signs; but when attention is directed to them they are quite unmistakable. The number of ancient institutions which bear the marks of a design to stand in the way of war, and to provide an alternative to it, is exceedingly great. There are numerous old forms of trial discoverable in a great number of countries and in a great number of races in which, among the ceremonial acts of the parties, you can see evidence of a mimic combat. The Roman sacramentum is the best and most familiar instance of this. What we call a judicial proceeding is obviously taking the place of a fight. Another expedient, which is a good deal misunderstood, is the pecuniary fine which was imposed sometimes on the individual author of a homicide, sometimes on his tribe, the Wehr Geld of the Germans, the Eric fine of the ancient Irish. I have seen it represented as evidence of the slight value attached by these races to human life. Here (it is said) is a mere money compensation for killing an enemy. But this is a misapprehension of the amount of the punishment inflicted. If we had learned that a man who tools the life of another was deprived of the whole of his land we should, I suppose, have been of opinion that the punishment was at all events not trivial. But one of the new ideas which we owe to the ancient Irish law, the Brehon law, is an adequate conception which we for the first time gain of the importance to mankind of moveable property. Capitale, cattle, capital, a long descended term, was the imperatively required implement for the cultivation of land, at a time when land was plentiful and perhaps common and undivided. The necessity imposed on the family or tribe of a man who had taken a life of paying a portion of this jealously guarded subject of ownership to another of the ancient groups was not a slight but an excee

dingly heavy penalty. It is remarkable further that, among the tribal groups of which society was primitively or anciently made up, the observance of good faith seems to have been more strict than among individuals. There is some evidence of want of respect for sanctity of agreement among individuals, but not so amid tribes. The ancient monuments which are open to us no doubt generally recount victories and defeats, but they also record treaties. Treaties of great complexity and antiquity are found among the surviving savages. Also we have a glimpse of systems of what would now be called International Law; that is to say of rules enforced with a regular ceremonial by trained official agents. Such was the jus fetiale of the Romans. And it is to be noted that there are certain departments of this law in which stricter provision teeny to have been made than were at the outset found in modern days in what is technically called the Law of Nations; for example, the extremely express and severe rules which regulate declarations of war.

In modern days the name of International Law has been very much confined to rules laid down by one particular class of writers. They may be roughly said to begin in the first half of the seventeenth century, and to run three parts through the eighteenth century. The names which most of us know are first of all that of the great Hugo Grotius, followed by Puffendorf, Leibnitz, Zouch, Selden, Wolf, Bynkershoek, and Vattel. The list does not absolutely begin with Grotius, nor does it exactly end with Vattel, and indeed as regards the hither end of this series the assumption is still made, and I think not quite fortunately, that the race of law-creating jurists still exists. It is further to be noted that before international law fell into the hands of these writers it had like most other subjects of thought attracted the attention of the Church. There is a whole chapter of the law of nations which is treated of by Roman Catholic theological writers, and a slight difference which distinguishes their use of technical expressions, such for example as 'law of nature' and 'natural law,' occasionally perplexes the student of the system before us.

The rules, however, laid down by the writers I have named and a few others, the nature of their system, and the degree in which it is settled, will occupy much of our time in the present or future courses of lectures. In the first place their system is that conventionally known as International Law; and secondly in them we find, not only the writers at whom Dr. Whewell's implied condemnation is aimed, but the writers whose works acted on the spirit of belligerency like a charm, who did prevent wars and mitigate them, and did something to prepare a time when war should be do more. I said something a few minutes ago of the erect of great agglomerations of countries in territorial empires in producing peace. When the Roman Empire had broken up, after a while the new European world was long protected against incessant war by its surviving authority. Its very shadow gave as much peace as was to be had. The pope or the emperor, each a continuation of the Caesars, served as a court of arbitration and did compose disputes and prevent wars. Too much influence must not, I have to warn you, be attributed to their influence. Their sphere was more particularly Italy; but Ferrari, an historian who has written both in Italian and French, and who has conceived the expedient of mapping out Italian history into periods according to the nature of the revolutions which occurred in the Italian States, has counted among these states no less than 7,000 revolutions, each with a war of its own, small or great. Still the emperor and the pope, and yet more the pope than the emperor, were unquestionably, on the whole, makers of peace; and sometimes the place of the pope was taken by a prince of acknowledged sanctity, like St. Louis of France. But the outbreak of the great wars of religion, the wars between (Catholic and Protestant, put an end to these pacific influences. The pope, of course, was necessarily on one side among the combatants, and on the whole the emperor was on the same side. Hence it came about that the great international jurists belonged to the smaller states and were wholly Protestants. The International Law of the Roman Catholic doctors had fallen into suspicion and finally into disrepute. A law with a new sanction was required if states were to obey it, and this is what the new jurists produced. The effect was a rapid mitigation of wars and a rapid decrease in their frequency.

It is very important that we should ask ourselves what is the true place in legal history of the set of rules called International Law. It will be found that the proper answer to this question involves replies to several less general questions which are nowadays put by critical writers, or which spontaneously suggest themselves to the mind of the student, as to the nature and authority of the famous system before us. What, then, is its place in the general development of European jurisprudence? We may answer pretty confidently that its rapid advance to acceptance by civilised nations was a stage, though a very late stage, in the diffusion of Roman Law over Europe. Those of you who have paid any attention to the history of law are aware that I have now touched upon a subject of much interest, and of some difficulty. In considerably less than a century, all the ideas of learned men on the history of Roman Law in the western world have undergone change. A hundred years ago, the virtually universal assumption of Juridical writers was that, when the pressure of invading barbarous races had broken up the territories of the Roman Empire into separate kingdoms, the Roman Law was lost, as the Empire itself was supposed to have been lost. It was indeed plain that, if this were so, the Roman Law must in some way or other, and at some time or other, have undergone a revival, and this was explained by fables, like the story of the discovery of a copy of Justinian's Pandects at the siege of Amalfi.

More recent learning, learning which on some points is extremely recent, has taught us that many of these assumptions are doubtful and many others are certainly false. The Roman Empire was never wholly lost, nor the Roman Law either. The Empire, with Caesar at the head of it, and with some institutions associated with it which even pointed back to the Republican Roman period, survived to be destroyed by Napoleon Bonaparte, though no doubt it was ever decaying and sinking into a heap of ceremonies, names, and forms. The Roman Law, on the other hand, was practically everywhere, and its tendency was, not to decay, but to extend its area and enlarge its authority. The systems of local custom which first established themselves in the new Europe betray a large ingredient of Roman Law it many portions of their structure. At a later date, writers of treatises professing to set forth the whole, or a definite part, of the institutions of particular countries, are found to have borrowed considerable fragments of books which the Romans regarded as of authority. And then we seem to see a whole flood of Roman jurisprudence spreading to the ends of civilised Europe.

No one explanation can be offered of these facts. In some countries, the Roman Law probably never ceased to be obeyed, and the foreign element in its institutions was the barbarous usage. In others the reverse of this occurred; the basis, at least the theoretical basis, of the institutions was barbarous, but the Roman Law, still known to some classes, was rapidly absorbed. A barbarous system of law is always scanty, and if it be contiguous to a larger and snore extensive system, the temptation in practitioners to borrow from this is irresistible. Only the other day, this process was full in view in British India. The bulk of the Native Indian law was extremely narrow. In whole departments of affairs, no rules were found to settle controversies which naturally rose up. And the result was that the bulk of Native Indian law was gradually becoming English through the filtration of rules into it from the more extensive system by its side. And this went on, until both the English and the purely Native law were gradually superseded by the new Indian Codes. We are not, however, to suppose that the Roman Law came to be received by European communities through any process resembling legislation. In the history of law, it is always essential to keep in mind the fact that legislatures are of very recent appearance in modern Europe. The earliest attempt to distinguish clearly between legislative and executive power, between legislative and executive action, has been traced to an Italian writer of the fourteenth century. The powerful bodies from which many of the legislatures are descended, assemblies of great men advising and controlling kings, were not true legislatures themselves. They assisted occasionally in the making of laws, but that was because law-making was recognized as important business, and the duty of these Councils, Parliament or States-General, was to advise the King in all important business. In truth, far the most influential cause of the extension of particular laws and of particular systems of law over new areas was the approval of them by literate classes, by clergymen and lawyers, and the acquiescence of the rest of the community in the opinions of these classes. When then we are asked by what legislative authority International Law came to be adopted so as to make it binding on particular communities, we should rejoin that the same question must first be put respecting the extension of Roman law and of every other system of law which, before the era of legislatures, gave proof of possessing the same power of self-propagation.

A great part, then, of International Law is Roman Law, spread over Europe by a process exceedingly like that which, a few centuries earlier, had caused other portions of Roman Law to filter into the interstices of every European legal system. The Roman element in International Law belonged, however, to one special province of the Roman system, that which the Romans themselves called Natural Law or, by an alternative name, Jus Gentium. In a book published some years ago on 'Ancient Law' I made this remark: 'Setting aside the Treaty Law of Nations, it is surprising how large a part of the system is made up of pure Roman law. Wherever there is a doctrine of the Roman jurisconsults affirmed by them to be in harmony with the Jus Gentium, the Publicists have found a reason for borrowing it, however plainly it may bear the marks of a distinctively Roman origin.' I must observe, however, that the respect for natural law as the part of the Roman Law which had most Cairns on our reverence did not actually begin with the international lawyers. The habit of identifying the Roman law with the Law of Nature, for the purpose of giving it dignity, was of old date in Europe. When a clergyman or a lawyer of an early age wishes to quote the Roman Law in a country in which its authority was not recognised, or in a case to which Roman Law was not allowed to apply, he calls it 'Natural Law.' When our Edward III laid a document before the Pope for the purpose of establishing his claim to the French throne, and of contending that the descendants of women may succeed to the property or throne of a male ancestor, he spoke of himself as arguing on Natural Law; though in point of fact the power of women to transmit rights of inheritance to their descendants was pure Roman Law of recent origin, and was not specially connected in any way with the Law of Nature.

But though the founders of the system which lies at the basis of the rules now regulating the concerns of states inter se were not the first to describe the Law of Nature and the Law of Nations, Jus Nature, Jus Gentium, as the most admirable, the most dignified portion of Roman Law, they speak of it with a precision and a confidence which were altogether new. They look upon it as perfectly determinable if the proper tests be applied, partly on the authority of express texts of Roman Law, partly by a process of inference from a great mass of recorded precedents. Its fitness for international purposes they regard as a discovery of their own, and some writers of their day speak of the system as the new science. No more doubt of its reality seems to have been entertained than (let us say) of the English common law by an English mediaeval lawyer. It is sometimes difficult to be quite sure how Grotius and his successors distinguished rules of the Law of Nature from religious rules prescribed by inspired writers. But that they did draw a distinction is plain. Grotius's famous work, the 'De Jure Belli et Pacis,' is in great part composed of examples supplied by the language and conduct of heathen statesmen, generals, and sovereigns, whom he could not have supposed to know anything of inspired teaching. If we assume him to have believed that the most humane and virtuous of the acts and opinions which he quotes were prompted by an instinct derived from a happier state of the human race, when it was still more directly shaped and guided by Divine authority, we should probably have got as near his conception as possible. As time has gone on, some parts of this basis of thought have proved to be no longer tenable. Grotius greatly overrated the extent of recorded history and, still more, the accuracy of the record. The very conception from which he started, the conception of a real and determinable Law of Nature, has not resisted the application of modern criticism. To each successive inquirer, the actual childhood of the human race looks less and less like the picture which the jurists of the seventeenth century formed of it. It was excessively inhuman in war; and it was before all things enamoured of legal technicality in peace. But nevertheless the system founded on an imaginary reconstruction of it more and more calmed the fury of angry belligerency, and supplied a framework to which more advanced principles of humanity and convenience easily adjusted themselves.

The effects of the 'De Jure Belli et Pacis,' both in respect of its general influence and of the detailed propositions which it laid down, were exceedingly prompt and have proved extremely durable. At about the middle of his reign Louis XIV of France adopted two measures by which he was thought to have carried the severity of war to the furthest point. He devastated the Palatinate, expressly directing his officers to carry fire and sword into every corner of the province, and he issued a notice to the Dutch, with whom he was at war, that, as soon as the melting of the ice opened the canals, he would grant no more quarter to his Dutch enemies. The devastation of the Palatinate has become a proverb of savageness with all historians, though fifty years earlier it might at most have been passed as a measure of severity, or might even have been defended; but the proclamation to the Dutch called forth a burst of execration from all Europe, and the threat to refuse quarter was not acted upon. The book of Grotius was making itself felt, and the successors of Grotius assure us that it was his authority which deterred the French king and the French generals from the threatened outrage.

But there is other evidence of the respect paid to the details of his system. Among the most interesting legal products of our day are the Manuals of the usages of war which a great number of civilised states are now issuing to their officers in the field. The Manual prepared for the United States is the oldest of them, but most of them have followed the attempt to form a Code of Land War which was made at the Conference at Brussels in 1874, an attempt which miscarried principally through recollections of the course of the great Franco-German war in 1870-1871. There is very much that is remarkable in all this private codification, as I propose to show in one or two lectures which will follow; but perhaps the most singular feature of the Manuals is the number of rules adopted in them which have been literally borrowed from the 'De Jure Belli et Pacis,' and specially from its third book. Remembering what Grotius himself says of the condition in which he found the law and usage of war when be began to write of it, and recalling what we learn from historical sources of the wars of succession and the wars of religion, we may well believe Vattel, the Swiss Jurist, a contemporary of the Seven Years' War and of Frederick the Great, when he tells us that what struck him most in the wars of his day was their extreme gentleness; and of the standard of gentleness proper to be followed in war Vattel was a severe judge.

I here conclude this Introductory Lecture, but there still remain some points of principle which meet us on the threshold of International Law, and which cannot be dismissed absolutely in silence. In my next lecture I propose to consider the binding force of International Law, and with it a question of some gravity on which the judges of England and the legal authorities of the United States do not entertain absolutely identical opinions, and I will state the way in which I venture to think the various shades of difference can be got over. In the succeeding lectures I shall have to consider a few fundamental topics in the system before us, and I hope afterwards to give a sketch, which must be brief on account of the narrow limits of my course, on the law of war by sea and land; and finally I will endeavour to discharge a part of the duty imposed on me by Dr. Whewell's directions, and to state what measures proposed in our day seem to me to tend to diminish the evils of war and to do something towards extinguishing it among nations.

Lecture II : Its Authority and Sanction

LECTURE II.
ITS AUTHORITY AND SANCTION.
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.

 
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