CHAP.
I

Realization of common interests

did not bring the same pressure to bear upon states to establish a similar rule of conduct between their corporate groups. For many centuries man did not find it necessary to go outside the narrow circle of his local community to satisfy his desire for the material goods of life or for the higher intercourse of mind and heart. Nevertheless, contacts between neighboring states became in time inevitable, and the resulting conflicts of claims called for a principle or rule of justice by which they might be peaceably settled. That this principle or rule of justice should be that which had already been accepted as the basis of law between citizen and citizen was but the logical reaction of men to the new conditions with which they were faced.

The earliest appearances of international law were thus in the form of an application to states as composite persons of the same fundamental principles of conduct which, whether recognized as coming from divine or from human sources, constituted the standard of justice within the state itself. As time went on these principles of conduct became more and more definite, until it became possible to invoke them not as individual inferences from an abstract law, but as concrete rules of present legal right. The first stage of international law had begun.

Following upon the recognition of the need of a law governing the conflicts of claims between state and state came the recognition of the existence of a body of common interests between the several corporate groups. Commercial intercourse not only cut across the borders of neighboring communities, but established relationships between the members of states widely separated from one another. The existence of a common religious faith formed for a time a body of spiritual interests transcending national boundaries within the European circle. Commerce extended its ramifications, and the development of the arts and sciences created new fields of common thought and action. A sense of unity, of collective responsibility, of international solidarity began to be realized, and such terms as "society of nations" and "family of nations" emerged from the study of the philosopher and became the accepted usage of official relations. With the invention of modern means of transportation and communication, the body of moral and material interests com/mon to the states of Europe and of the world at large reached such proportions that joint regulations and agencies of administration were seen to be necessary to provide for their protection and promotion. International law thus entered upon its second stage.

the growth

between

Offsetting these forces making for the adoption of a law between CHAP. states were others that retarded its development. On account of the corporate character of the state, its interests were usually Obstacles to identified with those of the ruler or ruling class in control of the of law government. The king was, in most cases, the keeper of the con- states science of the community. His personal sense of justice and his personal conception of the welfare of the community dictated the relations of the state toward other states. More than once when the sense of justice of neighboring communities and the realization of their common interests gave promise of the adoption of a common rule of law, the ambitions and rivalries of ruling dynasties created an artificial division between them.

Even in more modern times, with the general establishment of constitutional democracies, governments have tended to emphasize the divergent interests of their several states rather than the larger and more important interests that they have in common. In this they have, on the whole, been supported by the citizen body, partly owing to suspicion and distrust created by ignorance of conditions in foreign countries, and partly owing to the strong sense of nationalism developed by the wars and persecutions of the past. Setting aside the persistent element of human selfishness, which is an obstacle to municipal no less than to international law, the very size and complexity of the modern state has made it difficult for the individual to form a just view of the conduct of his government in the case in hand. Besides this, there are the artificial conditions of state life which act as a barrier to closer union. State boundaries have cut across the natural lines of human association and divided where they should have united. The heterogeneous character of modern states, large and small, advanced and backward in civilization, has added to the difficulty of reaching a common judgment of the whole body.1

velopment

The development of international law has thus been marked by Tendencies the interaction of unifying and separatist tendencies among the iden nations; and while that law has proceeded, on the whole, in the direction of a stronger and more comprehensive rule of conduct, it has lagged behind the municipal law of the more highly civilized states. On the one hand, its progress as a system of law has been

1 As a matter of fact, the development of international law has been for the most part dictated by a small group of the leading powers, from eight to twelve in number, whose rivalries have occupied the center of the political stage and largely contributed to the difficulty of organizing the public opinion of the nations at large.

CHAP.

I

Historical

roots of present law

governed by the standards of justice and morality prevailing at a given time within the several states.1 and by the degree to which governments have been willing to apply those standards to their foreign as well as to their domestic affairs. On the other hand, the scope of the law has steadily widened, keeping pace in this respect with the growing realization of states that in one field after another coöperation has promised greater advantages than has individual action, and the common interests of their collective body have been of greater importance than their mutual differences.2

Like the common law of England and the United States, the international law of the present day is in large part a product, not of formal and conscious enactment, but of gradual development from usage and custom) While its general principles transcend particular periods of history its specific rules are closely interwoven with the political and economic conditions of the past.) The conditions of one generation have given rise to practices which have persisted in a later generation when the original ground for them had disappeared.3 Claims have been made by individual states upon the basis of long-continued usage, when the acknowledged interest of the international community called for their repudiation. Moreover, the technical terminology of international law became associated with the political thought of the period of its origin and has remained at a later day to support contentions inconsistent with the facts of the times.* In consequence, it is necessary at almost every stage of the study of international law to consider the historical associations under which specific rules have grown up and the extent to which particular conditions determined the reason of the rule or only its temporary form. It is with this object in view that the following brief sketch of the development of international law is presented.

Modern discoveries of records of the ancient empires of the

1 See Oppenheim, International Law, I, § 51.

The development of the underlying principles of international law is surveyed by J. B. Scott in The American Institute of International Law: Its Declaration of the Rights and Duties of Nations, pp. 1-49, and by J. S. Reeves, in Round Table Conferences of the Institute of Politics at its First Session, 1921. See also Vinogradoff, Historical Jurisprudence, passim. The analogy between national and international law is impressively set forth by Grotius, De Jure Belli et Pacis (Eng. trans.), Prolegomena.

For one instance out of many, see the rules of neutrality with respect to shipments of arms by neutral citizens to belligerent states. Below, p. 567. As, for example, the terms "sovereignty, "semi-sovereign state." See

below, pp. 44, 93.

CHAP.

I

national

successive

states

East have led us to correct our ideas of the complete isolation of those states, and have shown us that they maintained at times relations of friendly commercial intercourse. Treaties between b. Interthe Egyptian Pharaohs and neighboring kings, entered into as practice at far back as the fourteenth century B.C., provided for the recog- periods: nition of their mutual sovereignty and equality, as well as for the oriental extradition of political refugees and immigrants. But the relations thus established were limited to the countries involved and were not general among a group of states.1 Treaties were similarly entered into by David and Solomon and later Hebrew kings with neighboring states, other than the seven nations marked for extermination, and instances are to be found showing a care for the faith of treaties and a recognition of the sanctity of the ambassadorial character; but again no general law was contemplated.2 Apart from these and other relations between state and state, there are a few evidences of the recognition of a higher moral law restraining on occasion the ruthlessness with which war was generally waged. The Indian Code of Manu, about 500 B.C., prescribed humane treatment of prisoners and non-combatants and forbade the use of poisoned weapons and other excesses of warfare. But for the most part war was waged with relentless cruelty by Assyrians and Babylonians, Medes and Persians, Phenicians and Carthaginians; and even the Jews, in spite of the ideals of peace proclaimed by their prophets, rivaled their neighbors in slaughter and extermination of the enemy.*

city-states

It was among the Greek city-states that the first consciousness The Greek of a community of interests developed, and with it a rudimentary form of international law. Within the narrow circle of the Hellenic world city-state met city-state upon a basis of mutual recognition of independence and legal equality, modified, as in the world of nations to-day, by alliances of separate groups, by religious and political leagues, and by the hegemony of successive individual states. A firm foundation for union was to be found in their common race, religion, language, and customs-bonds which

1 The original document of a treaty between Egypt and the Hittites may be found in Breasted, Ancient Records of Egypt, III, 163 ff.

'See Walker, History of the Law of Nations, 31-36.

See Burnell and Hopkins, The Ordinances of Manu, Lecture VII.

For the war practices of the Hebrews, see Judges, Samuel, Kings, and other books of the Old Testament, passim. Also H. J. Cadbury, National Ideals of the Old Testament; J. M. P. Smith, Religious Life of the Hebrews. See also "War" in Dictionary of the Bible, IV, 892 ff.; "War and War Gods," in Hastings, Encyclopedia of Religion and Ethics, XII, 691 ff.

CHAP.

I

"Laws of the Hellenes"

Position

of aliens

and ambas

sadors

were, however, greatly restricted in their power for the creation of an effective international law in consequence of the strong sense of individuality developed by the separate states, and by the ambitions which led Sparta and Athens each in its turn to strive for a position of leadership over the other states.

Amid these more favorable conditions a series of laws known as "the laws (or customs) of the Hellenes" grew up between the several states. These laws consisted partly of customs based upon "natural" or universal law and partly of express conventions between separate states. The former were derived from "a natural and universal principle of right and wrong, independent of any mutual intercourse or compact," which Aristotle observed to be recognized by all men.1 Their sanction was a religious one, in so far as the universal dictates of reason might be looked upon as having their origin in the will of the gods. Inasmuch, however, as the principles of the universal law were in many instances repudiated in actual practice and also, being conditioned by the ideals of the times, permitted practices revolting to modern conceptions of humanitarian conduct, many writers have refused to find in them any evidences of an international law. On the other hand there was an elaborate system of treaty law based upon express compacts between the separate Greek states. The sanction of these conventions was the rule of good faith, which was itself part of the universal law. Their subject-matter included many rules of the unviersal law, which thus acquired a more definite character, as well as a wide range of rules which in modern times have become incorporated in the customary law.3

Owing to the peculiar city-state organization of ancient Greece, the system of international law there developed bears a closer \ relation to our modern system than does the international law of any subsequent period down to the year 1648. We find a highly developed law regulating the position of aliens, whose rights were based partly upon the universal law of hospitality and partly upon convention, some treaties going so far as to provide for reciprocal civil and political rights, although in most cases the resident alien could exercise his rights only through the intermediation of a patron. In earlier times naturalization was refused, but there 'See Phillipson, International Law and Custom of Ancient Greece and Rome, I, 53.

Kent, Laurent, Wheaton, and others; quoted by Phillipson, op. cit., I, 47, 48. Phillipson, op. cit., I, 382.

3