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it was evident that if wars were to be softened or prevented,-and this, it is to be remembered, was their primary aim,-it would be necessary to invoke considerations drawn from the moral nature of man, and the inescapable identity of his interests with those of his fellows. Hence it is that Franciscus de Victoria in his Relectiones de Indis, written early in the sixteenth century, appeals (p. 390) to the testimony of Florentinus in the Digest (1, 1, 3) who, referring to the jus gentium secondarium, reminds us that nature has formed a bond of relationship not to be broken by injury on the part of a man toward his fellows. Florentinus was a member of the Council of Alexander Severus and wrote early in the third century A.D. He was esteemed as one of the most accomplished men of his time, and in this fragment, as preserved by Justinian, we discern an accurate reflection of the Stoic principle of Societas. 18
It is this principle, indeed, applied by the theologians of that day to world affairs which alone could support any structure of international scope. Thus it was that toward the close of the sixteenth century, Suarez, one of the greatest of all the immediate predecessors of Grotius, considers jus gentium as a system intermediate between jus nature and jus civile. The four concluding chapters of the second book of his treatise De Legibus are devoted to jus gentium, and here he strongly emphasizes the conception of an international community world-wide in its range. But while thus rightly conceiving such association as the indispensable condition of human progress from a purely practical point of view, Suarez does not neglect a far higher standard and founds himself on principles identical with those enjoined, as we have seen, by St. Augustine: Dicitur ergo humana lex quia proxime ab hominibus inventa et posita est. Dico autem proxime quia primordialiter omnis lex humana derivatur aliquo modo a lege eterna.
Here, admitting the final authority of the law of nature, Suarez and his successors applied themselves to the construction of an international system in harmony with the deeper things of morals and religion. National action must become coördinated, on the one hand, in obedience to a divine rule, and on the other, it must recognize the need of self-protection and intercourse as the visible sources of a truly international law.19 In the view of these great writers, the idea of abstract justice is objectified in the creation of the world order whose units are nations and in which the
18 Natosque esse ad congregationem hominum et ad societatem communitatemque generis humani, etc. (Cicero, De Finibus, IV, 2, 4).
Sed omnium, quæ in hominum doctorum disputatione versantur, nihil est profecto præstabilius quam plane intellegi nos ad justitiam esse natos neque opinione sed natura constitutum esse jus.
Id jam patebit, si hominum inter ipsos societatem conjunctionemque perspexeris (Cicero, De Legibus, I, X, 28).
19 It is important clearly to distinguish the sources from the evidences of international law. Dr. Woolsey, in his International Law, 4th Ed., pp. 21 and 22, note, says: "Self-protection and intercourse are the two sources of international law. They
individual and particular yield to the permanent and universal. The essential unity of mankind, first grasped in the moral sphere only, thus reaches the positive character of a legal order. The member states of such a world community may not, therefore, assert any right of action incompatible, either in war or peace, with these high standards.
Rightly understood in the light of its origin and history, international law makes an unassailable claim to the loyalty of every friend of civilization. Taking its rise in a recognition of eternal truth and of the undeniable needs of national communities, its source-conceptions are drawn from a realization of primal conditions under which alone civilization may hope to persist and develop. In its essential nature it is seen as a silent yet vivifying element in the associational harmony and progress of the human race, and its appeal is to the permanent and ennobling in individual as in national character and achievement. It may well demand, therefore, a zealous interest in every effort looking to a sympathetic interpretation and a knowledge of its ideals. To assure its expansion and enforce its make it necessary, and the conception in man of justice, of rights and obligations, must follow because he has a moral nature.”
In the leading case of Hilton v. Guyot, decided by the United States Supreme Court at October term, 1894 (159 U. S. 112, 163), the court said:
"International law, in its widest and most comprehensive sense including not only questions of right between nations, governed by what has been appropriately called the law of nations; but also questions arising under what is usually called private international law, or the conflict of laws, and concerning rights of persons within the property and dominion of one nation, by reason of acts private or public, done within the dominions of another nation-is part of our law, and must be ascertained and administered by the courts of justice as often as such questions are presented in litigation between man and man duly submitted to their determination.
"The most certain guide no doubt for the decision of such questions is a treaty or statute of this country. But when, as is the case here, there is no written law upon the subject, the duty still rests upon the judicial tribunals of ascertaining and declaring what the law is whenever it becomes necessary to do so in order to determine the rights of parties to suits regularly brought before them. In doing this, the courts must obtain such aid as they can from judicial decision, from the works of jurists and commentators, and from the acts and usages of civilizad nations."
At the Conference of Teachers of International Law, held in Washington, April 23-25, 1914, under the auspices of the American Society of International Law, the following resolutions, reported by a subcommittee, of which the present writer had the honor to be chairman, were unanimously adopted by the Conference:
(1) "In the teaching of international law emphasis should be laid upon the positive nature of the subject and the definiteness of the rules."
(2) "In order to emphasize the positive character of international law, the widest possible use should be made of cases and concrete facts in international experience."
(3) "In the teaching of international law care should be exercised to distinguish the accepted rules of international law from questions of international policy."
(4) "In a general course of international law the experience of no one country should be allowed to assume a consequence out of proportion to the strictly international principles it may illustrate.
“The interest of students can best be aroused when they are convinced that they are dealing with the concrete facts of international experience. The marshalling
prescriptions should be the aim of all who would seek part in a world inheritance at once the support and the promise of enlightened happiness for mankind.
of such facts in such a way as to illustrate general principles lends a dignity to the subject which cannot help but have a stimulating influence.
"Hence international law instruction should be constantly illustrated from those sources which are recognized as ultimate authority, such as
(a) Cases, both of judicial and arbitral determination;
(Westphalia, 1648; Vienna, 1815-23; Paris, 1856; London, 1909.)
character; (d) The great classics of international law." In the case of the Zamora, decided by the Judicial Committee of the Privy Council, April 7, 1916 (2 A.C., p. 77), it was objected on the part of appellants that the provisions of Order in Council No. XXIX material to the present question violated the law of nations, and that the prize court should not act upon them. The court held that the Crown has no power by Order in Council, but prescribed an order to alter the law which the prize courts have to administer, even where that law is imperfectly ascertained and defined; but when an Order in Council mitigates the rights of the Crown in favor of enemies or neutrals, it is the duty of the prize court to act upon it.
The part taken by courts of justice in the development of international law is comprehensively considered by the Hon. Simeon E. Baldwin, in the American Law Review for March-April, 1901; and the "Legal Nature of International Law" forms the subject of an exhaustive article by Dr. James Brown Scott in the AMERICAN JOURNAL OF INTERNATIONAL LAW for October, 1907.
“The Sources of International Law” forms the subject of a brief article by Sir Frederick Pollock in the Law Quarterly Review for October, 1902, p. 418; this article being subsequently expanded by the author in Vol. XII of the Cambridge Modern History.
INTERNATIONAL SOCIETY AND INTERNATIONAL LAW
BY JESSE S. REEVES
In a recent work entitled The Psychology of Nationswe are told that “International Law must be made intelligible to very young minds, and now that we are to have an international seat of congresses and courts, the interest must be made in its existence to give reality to the idea of internationalism." This admonition by a psychologist is illustrative of a widespread attitude toward international law; that it is a matter readily understood, for which there need be no specialized training, everyone being competent to pass judgment upon any subject about which international law is supposed to be concerned.
At the opposite extreme are certain specialists in the subject of international law, one of whom has recently stated that it is no more possible to make the principles of international law intelligible to the untrained mind than to popularize for infants the binomial theorem, or the laws of optics, or the rule against perpetuities. We have from a combination of these examples the strange paradoxical phenomenon not infrequently observable: some of us are apt to regard matters outside of our own fields of specialization as easy to be understood, and have no difficulty in making generalizations with reference to them by which a specialist would not dare to hazard his reputation; and yet at the same time we are apt to consider our own fields as caviare to the general, even to the extent of assuming that one's own particular body of knowledge is esoteric. International law is, on the one hand, not a matter for the instruction of infants, nor, upon the other, should it be treated as an esoteric subject, for it has to do with the actualities of life.
That there has been since the outbreak of the World War a feeling on the part of many writers that there should be some restatement of the fundamental principles of international law in terms of international life, is apparent from many titles in the recent literature of the subject. “The New International Law,” “The Renovation of International Law," "The Future of International Law,”-such are a few of these titles, showing the drift of thought. Hardly had the invasion of Belgium taken place in 1914 before a leading German scholar set forth an essay entitled “The New International Law," in which he insisted that it was necessary to rebuild that body of thought according to the methods of German science, “for 1 By George E. Partridge, 192. 2 R. R. Foulke, International Law, preface.
German science alone has been able to work in systematic fashion"; and looking into the future, he hoped that Germany would be so “vastly fortified by her victorious war that she could undertake the protection of international law just as, centuries ago, the Lombard, Dante, invoked the German Emperor as the protector of law and the shield of justice." 3
Others have insisted that international law has departed from its original foundations, that it is necessary to eliminate the influence of certain eighteenth century writers, especially Vattel, and, paraphrasing a familiar maxim, cry “Back to Grotius." 4 Still others have felt that international law has developed too much along the positive side, and thereby has eliminated too much of its original ethical content. Still others again argue that international law is weak because vague, and vague because of its lack of complete expression in a codified form. Again, there are those who object that, to the extent that there has been a process akin to codification, those conventions and treaties that have been regarded as law-making were but unwholesome compromises and have therefore retarded rather than advanced the progress of legal ideas as applied to international society.
And, finally, there are those (perhaps they are the greatest in number) whose insistence is that international law has been weak because of the lack of force behind it, by which the vindication of its rights can be enforced and the performance of its duties compelled. In other words, the insistence is that international law must acquire a satisfactory sanction. And finally much of the argument in favor of international organization rests upon the assumed need for the codification of international law,an international legislative process and the machinery for its enforcement, not only judicial but executive, a need which fifty years ago James Lorimer set forth as the ultimate problem of international jurisprudence.
Before considering the character of the new international law, it is obviously desirable to weigh the objections to the old, the fundamental principles having to do with the essential qualities of international rights and duties. If we go back to Grotius, we shall see, as has been so frequently recognized, that his system is based upon two juristic concepts : one, that of the law of nature; the other, that of custom and precedent evolving general rules (jus gentium). The former conception had been developed from the Greek Stoics and the Roman civilians through the Middle Ages, so that Grotius, while adopting the law of nature as a source of international law, was using an idea familiar to all who had been thinking in legal terms. The law of nature furnished an idealistic and ethical content which could be put in strong contrast with the unethical and violent attitude of state toward state. No one was free from the obligations of the law of nature, discoverable by man through the exercise of right
3 Kohler, Das neue Völkerrecht, Zeitschrift für Völkerrecht, Sept., 1915. 4 C. von Vollenhoven, The Three Stages in the Evolution of the Law of Nations, 1917. 6 Lorimer, Institutes of the Law of Nations, Book V.