many Asiatic elements. In character and population, there is indeed hardly more real separation between European Russia and Siberia than there is between the eastern and western parts of the United States. Of late Russia's foreign policy has been chiefly concerned with Asiatic questions, and it is likely so to continue. As for France, although her national life is, and will remain, centered in the European continent, her many colonies are scattered over the globe. Already some of them are represented in her chambers, and as time goes on they will become, more and more, parts of one organic dominion. A Frenchman born in Algeria regards himself as a European, and with good right; but he is no more so than is the white Australian or the Canadian, or, except in the matter of allegiance, than the American. Under these circumstances, when people abroad talk about a union of the European powers against the Asiatic peril" or "the American commercial invasion," they are appealing to a community of interests which does not exist.

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156. Scope of international law. The general field of international law may be outlined as follows:

International law is usually divided into:

(a) Public international law, which treats of the rules and principles which are generally observed in interstate action, and

(b) Private international law, which treats of the rules and principles which are observed in cases of conflict of jurisdiction in regard to private rights. These cases are not properly international, and a better term for this branch of knowledge is that given by Judge Story," The Conflict of Laws." International law, in the true sense, deals only with state affairs.

International law is generally observed by civilized states; some states, even before they were fully opened to western civilization, professed to observe its rules. The expansion of commerce and trade, the introduction of new and rapid means of communication, the diffusion of knowledge through books and travel, the establishment of permanent embassies, the making of many treaties containing the same general provisions, and the whole movement of modern civilization toward unifying the interests of states, has rapidly enlarged the range of international action and the scope of international law. Civilized states, so far as possible, observe the rules of international law in their dealings with uncivilized communities which have not yet attained to statehood. International law covers all the relations into which civilized states may come, both peaceful and hostile. In general, its scope should not be extended so as to interfere with domestic affairs or to limit domestic jurisdiction, though it does often limit the economic and commercial action of a given state, and determine to some extent its policy.

II. HISTORY OF INTERNATIONAL, LAW

157. Development of the theory of international law. Woolsey traces the main phases through which the theories of international law have developed.

In tracing the progress of international law, that is of views or theories concerning it, we may notice several stages, more or less clearly defined, through which it has passed. 1. Among the ancients we have a recognition of right and wrong in the intercourse of states together with some rules regulating intercourse and some rules of humanity in war,—placed chiefly under the sanction of religion, but no separation of this branch of law from the rest, as a distinct department. This period continued until after the revival of learning. In the Middle Ages the science was still undeveloped, but religious institutions and antipathies modified the practice of Christian states. During the revival of learning, a spirit arose in Italy, which made light of all obligations between states, and almost deified successful wickedness. Soon after this, we perceive that the forerunners of Grotius, as Suarez, Ayala, and above all, Albericus Gentilis, are aware that a system of international law ought to be evolved, and are working out particular titles of it.

2. With Grotius a new era begins. His great aim was practical, not scientific, it was to bring the practice of nations, especially in war, into conformity with justice. He held firmly to a system of natural justice between states, without, however, very accurately defining it. To positive law, also, originated by states, he conceded an obligatory force, unless it contravened this justice of nature. In setting forth his views, he adduces in rich abundance the opinions of the ancients, and illustrations from Greek and Roman history. The nobleness of his aim, and his claim to respect as the father of the science, have given to the treatise "De Jure Belli et Pacis" an enduring influence.

3. After Grotius there appear two tendencies. One is to disregard all that is positive and actual in the arrangements between nations, and to construct a system on the principles of natural law; in which way a law for states, differing from ethics and natural justice, is in fact denied. This tendency is represented by Puffendorf. The other tendency was a reaction against this writer, and satisfied itself with representing the actual state of international law, as it exists by usage and treaty, without setting up or recognizing a standard of natural justice by its side. Bynkershoek and Moser, with Martens and others in more recent times, are examples here. Many writers, however, treading in the steps of Grotius, regard natural justice as a source of right, with which the practice of states must

be compared and brought into conformity, and which may not be neglected in a scientific system.

There has been a general progress in the views of text writers since the age of Grotius, and a substantial agreement between those of all nationalities at the same era. And yet minor differences are very observable. Some of the most striking of these are the differences between the English and the Continental doctrine, arising from the insular position of Great Britain, from her commercial interests, and her power on the sea. Thus we find her behind the Continent in respecting the sanctity of ambassadors until into the eighteenth century. Thus also while her practice in land wars has been humane, her sea rules and the decisions of her courts have in several ways borne hardly upon neutrals. It is worthy of notice that our [American] courts have followed English precedents, while our Government, as that of a nation generally neutral, has for the most part leaned in its doctrines and treaties towards Continental views.

158. The formation of international law. The influences which, during the ancient and medieval periods, paved the way for modern international law, may be summarized as follows:

The history of the development of those rules and principles now considered in international law naturally falls into three periods, early, middle and modern.

The early period dates from the development of early European civilization, and extends to the beginning of the Christian Era. During this period the germs of the present system appear.

(a) The dispersion of the Greeks in many colonies which became practically independent communities gave rise to systems of intercourse involving the recognition of general obligations. The maritime law of Rhodes is an instance of the general acceptance of common principles. . . . The recognition by Greece of the existence of other independent states, and the relations into which the states entered, developed crude forms of international comity, as in the sending and receiving of ambassadors and the formation of alliances.

(b) Rome made many contributions to the principles of international law in the way of the extension of her own laws to wider spheres, and in the attempt to adapt Roman laws to conditions in remote territories. . . . Wherever Rome extended her political rule, she adapted her laws to the peoples brought under her sway....

The varied struggles of the middle period — from the beginning of the Christian Era to the middle of the seventeenth century—had a decided influence upon the body and form of international law.

(a) The growth of the Roman Empire, as the single world power and sole source of political authority, left small need of international standards. The appeal in case of disagreement was not to such standards, but to Cæsar. The idea of one common supremacy was deep-rooted. Political assimilation followed the expansion of political privileges.

(b) A similar unifying influence was found in the growth of the Christian Church which knew no distinction bond or free, Jew or Gentile. Christianity, called to be the state religion early in the fourth century, modeled its organization on that of the Roman Empire; and from the sixth century, with the decay of the Empire, the Church became the great power.

...

(c) By the eleventh century feudalism had enmeshed both the temporal and spiritual authorities. This system, closely related to the possession of land and gradation of classes, discouraged the development of the ideas of equality of state powers necessary for the development of international law, though it did emphasize the doctrine of sovereignty as based on land in distinction from the personal sovereignty of earlier days.

(d) The Crusades, uniting Christendom against the Saracen for foreign intervention, awakening Europe to a new civilization, expanding the study and practice of the Roman law which feudal courts had checked, weakening many feudal overlords, enfranchising towns, freeing the third estate, spreading the use of the Latin language, enlarging and diversifying commerce, and teaching the possible unity of national interests, led to the apprehension of a broader basis in comity which hastened the growth of interstate relations.

(e) The code of chivalry and the respect for honor which it enjoined introduced a basis of equitable dealing which on account of the international character of the orders of chivalry reacted upon state practice throughout Christian Europe.

(f) The expansion of commerce, especially maritime, emphasized the duties and rights of nations. The old Rhodian laws of commerce, which had in part been incorporated in and expanded by the Roman code during the days before the overthrow of the Empire, formed a basis for maritime intercourse.

(g) Closely connected with the development of maritime law during the latter part of the middle period was the establishment of the office of consul. The consuls, . . . resident in foreign countries, assisted by advice and information the merchants of their own countries, and endeavored to secure to their countrymen such rights and privileges as possible. Consuls seem to have been sent by Pisa early in the eleventh century, and were for some time mainly sent by the Mediterranean countries to the East.

(h) The discovery of America marked a new epoch in territorial and mercantile expansion, and introduced new problems among those handed down from an age of political chaos.

(i) The middle period, with all its inconsistencies in theory and practice, had nevertheless taught men some lessons. The world empire of Rome showed a common political sovereignty by which the acts of remote territories might be regulated; the world religion of the Church of the middle period added the idea of a common bond of humanity. Both of these conceptions imbued men's minds with the possibility of a unity, but a unity in which all other powers should be subordinate to a single power, and not a unity of several sovereign powers acting on established principles. The feudal system emphasized the territorial basis of sovereignty. The Crusades gave to the Christian peoples of Europe a knowledge and tolerance of one another which the honor of the code of chivalry made more beneficent, while the growth of the free cities opposed the dominance of classes, feudal or religious. The fluctuations and uncertainties in theory and practice of international intercourse, both in peace and war, made men ready to hear the voice of Grotius (15831645), whose work marks the beginning of the modern period.

159. Importance of the conception of territorial sovereignty. The idea of territorial sovereignty, introduced by feudalism, fundamentally affected the conception of the external obligations of states.

Foremost among the secondary influences which determined the ideas of the Middle Ages upon international relations was the conception of territorial sovereignty due to feudalism. When the political rights and duties of individuals within the state came to be associated with the possession of land, it was an easy inference that the sovereign of the community, whose political functions were far larger than those of any other member of it, must have a corresponding extension given to his rights over the soil on which his people were settled. Formerly, if he could not be universal ruler, he was lord of his people. Now, in the absence of the former alternative, he claimed to be lord of his people's lands. Thus sovereignty became territorial, a character it still retains.

160. Influence of Grotius on international law. The conditions that made possible the enormous influence of the work of Grotius are explained in the following:1

At a most opportune moment in the history of the science, there appeared the first authoritative treatise upon the law of nations, as that term is

1 Copyright, 1900 and 1908, by George B. Davis.