Paquete Habana, "to the works of jurists and commentators, who by years of labor, research, and experience, have made themselves peculiarly well acquainted with the subjects of which they treat." And the court also adds: "Such works are resorted to by judicial tribunals, not for the speculations of their authors concerning what the law ought to be, but for trustworthy evidence of what the law really is." " (b.) Reason. As in other fields of law, reason has played a most important part in the formation and development of international law. Whenever new problems have arisen, courts, publicists, and statesmen have properly appealed to the generally accepted principles of common sense and equity in order that justice might be administered among nations. It is common to assert that Grotius, "the father of international law," founded his system on natural law. This, however, is only true in part. Writing largely to mitigate the horrors of war when war was the normal state of affairs and when there was no longer a common superior to command the respect of nations, Grotius invoked the law of nature in certain cases to support his arguments. That he did not fail to distinguish between that portion of the law of nations which was founded on common consent, and that which was founded on an assumed law of nature, is apparent in such statements as the following: * * * * I have used in favor of this law (International Law), the testimony of philosophers, historians, poets, and even of orators; not that they are indiscriminately to be relied on as impartial authority; * but because where many minds of different ages and countries concur in the same sentiment, it must be referred to some general cause this cause must be either a just deduction from the principle of natural justice, or universal consent. The first discovers to us the natural law, the second the law of nations. In order to distinguish these two branches of the same science, we must consider, not merely the terms which authors have used to define them, (for they often confound the terms natural law and law of nations,) but the nature of the subject in question. For if a certain maxim which cannot be fairly inferred from admitted principles is, nevertheless, found to be everywhere observed, there is reason to conclude that it derives its origin from positive institution. * * * As the laws of each particular state are designed to promote its advantage, the consent of all, or at least the greater number of states, may have produced certain laws between them. And, in fact, it appears Scott's Cases, p. 19. that such laws have been established, tending to promote the utility, not of any particular state, but of the great body of these communities. This is what is termed the Law of Nations, when it is distinguished from Natural Law.7 Whatever Grotius may have specifically implied by the term "natural law," in invoking that law in support of certain principles of international law which he was endeavoring to establish it would seem as if he had nothing more in mind than the law of equity. It is fairly evident, as argued by Maine in the chapter on "Equity" in his book on Ancient Law, that both the Roman and English conceptions of equity were influenced by theories of natural law. The main point, however, is that whether the principles of natural law or of equity be invoked, the appeal is ultimately to reason. Now reason cannot possibly disassociate itself from morality and ethics. Arguments concerning international rights and obligations are sure to be colored by varying conceptions of morality and ethics. Lawrence, however, observes in this connection that: * * * If it were necessary to determine the rights of states by reference to Moral Philosophy, publicists would give different versions of them according as they differed in their views of the fundamental questions of ethics, and we should have almost as many systems of International Law as we have writers on the subject. As long as there are on the one hand a number of conflicting notions of what the rights and duties of states ought to be, and on the other hand a tolerably well-defined body of principles by which states guide their conduct, International Law must be founded on the latter, and not on the former. * * To argue otherwise would be to blend the ideal with the real, to confuse what ought to be with what is, and to turn moral rightness into legal right. 8 It is recorded that in the 15th year of the reign of Richard II., "two petitions, addressed to the king and lords of parliament, were sent to the chancery to be heard, with the direction, 'Let there be done, with the authority of parliament, that which right and reason and good faith and good conscience demand in the case.' These may be said to be the general principles upon which equity is administered at the present day." When we say, therefore, that reason is one of the sources of international law, 'Quoted by Wheaton, 8th ed., p. 5, as edited by Dana. Principles of International Law, 3rd ed., p. 22. 'Bouvier's Law Dictionary. 9 we must understand it in this broad sense of equity, whose chief function is "the correction of that wherein the law is defective." Equity, therefore, has a most important and valuable place in international law, whether it be employed in the reasonings of courts of law, of arbitral tribunals, of publicists or of statesmen. 3. THE SUBJECT-MATTER OF INTERNATIONAL LAW International law does not deal with fictions or abstractions. It is a science which deals with ascertainable facts. The fundamental fact with which it deals is the existence of states. If states emerge and exist as separate, autonomous entities, international law is bound to take notice of their existence. These entities may be subject to various classifications and qualifications as nations, empires, suzerainties, protectorates, confederations, belligerents, or even insurgents. They remain, however, by reason of their separate, distinct existence, the proper concern of international law. 4. THE FIELD OF INTERNATIONAL LAW If international law must take notice of entities of so varied a character, it becomes impossible to limit its field of application to the socalled "civilized" nations of the world, as would such writers as Hall when he says: It is scarcely necessary to point out that as international law is a product of the special civilization of modern Europe, and forms a highly artificial system of which the principles cannot be supposed to be understood or recognized by countries differently civilized, such states only can be presumed to be subject to it as are inheritors of that civilization.io The idea that states like China and Japan are to be admitted to the privileges of international law only on the express consent of the nations of Europe is not only false, but ironical, when one recalls how cynically disregardful of the basic principles of international law the European Powers have been. It would seem ludicrous to assert that states do not exist and are subject to no rights under international law simply because they have not been recognized and, as it were, given 10 International Law, 6th ed., p. 39. proper social standing. A much more rational point of view is that expressed by Lord Stowell in the case of The Madonna Del Burso, when he said: Independent of such engagements (treaties), it is well known that this court is in the habit of showing a peculiar indulgence to that part of the world (Ottoman Porte). The inhabitants of those countries are not professors of exactly the same law of nations with ourselves. In consideration of the peculiarities of their situation and character, the court has repeatedly expressed a disposition not to hold them bound to the utmost rigor of that system of public laws on which European states have so long acted in their intercourse with one another.11 International law applies therefore not only where states exist, but it varies in its application. Nothing could be more unjust as well as arrogant than the claim that the nations possessing European civilization were the sole arbiters of the rights and obligations of other nations under international law. A recognition of this important fact is essential to a comprehensive understanding of the real nature of international law and of its evolution as a science. 5. DEFINITION OF INTERNATIONAL LAW It has been said that there is a natural tendency in man to define things in order to avoid the necessity of having to understand them. Definitions, as the term itself suggests, in defining too clearly, may unduly limit and restrict. In defining too generally, they become unduly vague. This is particularly true of international law, which has been subjected to an extraordinary range of definitions. Halleck defines it as "the rules of conduct regulating the intercourse of States." 12 Kent affirms that "The Law of Nations is a system of rules which reason, morality, and custom have established among civilized nations as their public law." 13 Bluntschli would give to international law the extensive scope indicated in the following quotation: International Law is the sum-total of recognized facts and principles which unite different states in a juridical and humanitarian association, and assures the different states of a common protection for the general rights flowing from their human character.14 11 Scott's Cases, p. 2. 12 International Law, p. 42. 13 Commentaries, I, 1, 43. 14 Droit International, 2d. ed., p. 53. Bynkershoek would on the other hand limit the scope of international law within extremely narrow bounds when he says: * * * The law of nations is only a presumption founded upon usage, and every such presumption ceases the moment the will of the party who is affected by it is expressed to the contrary and there is no law of nations except between those who voluntarily submit to it by tacit convention.15 When one analyzes varying definitions of the kind quoted at random, he is impressed with the extreme difficulty and the defects of any attempts to reduce to a phrase the nature, scope, and full significance of a subject like international law. The most satisfactory definition will be found in as comprehensive a knowledge of the subject as may be obtained from extensive study and reflection. Certainly it is clear that an adequate understanding of the particular subject under consideration, namely, that of the theory of the independence and equality of states, can only be obtained by a thorough understanding of the whole field of international law. II. THE STATE 1. THE ORIGIN AND OBJECT OF THE STATE Inasmuch as the fundamental fact with which international law has to deal is the existence of states, it is essential that we scrutinize closely the chief characteristics of the state. Much of a speculative nature has been written concerning the origin of the state. The writings of men like Hobbes and Locke concerning the existence of an alleged state of nature which rendered the establishment of the state desirable and necessary, do not contribute very much to an understanding of the nature and object of the state. And even theories in respect to the nature and object of the state do not contribute very much to an understanding of the state from the international point of view. It is of slight concern to international law what the object of a state may be, provided it does not exist for the purpose of annoying and plundering other states. The object of a state may be "power," or "happiness," or "general 15 De Foro Legatorum, III, 10. |