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CHAPTER II

INTERNATIONAL LAW

DAWN OF INTERNATIONAL LAW

Out of the feudal system of the middle ages, as a natural outgrowth, came kingdoms, personified in their sovereigns, to whom all subjects owed fealty as the source of title to all the land in the state. The saying of Louis XIV “I am the state" fairly expressed the prevailing theory of national responsibility. In all dealings with other powers, whether in peace or in war, the king spoke for his country. The discovery of America and of the ocean route to the far east excited rivalry among the maritime countries for distant trade and possessions. Governments became more firmly established, population increased, and ships multiplied on the seas. Nations had more frequent intercourse with each other, and rules governing such intercourse came to be regarded as necessary. The rudiments of a common law of nations were generally accepted by the leading states, though not uniformly observed. The only sanction of the law was such as was imposed by the ruler on his own subjects. The Popes sometimes userl their influence and spiritual weapons to mitigate the barbarities of war, but were too often more concerned with the interests of the church than in restraining the savagery of war.

The first comprehensive work on international law was that of Hugo de Groot, better known by the Latinized name of Grotius, entitled De Jure Belli et Pacis, published in 1625. It is a most scholarly work and shows great familiarity with Greek and Roman history and the reasoning of their statesmen and philosophers. While the great purpose actuating his effort was the advancement of moral standards, he dealt with an existing, not an ideal, world, and based his statements concerning the laws on the rules actually observed. Like the Roman scholars he sought for the Ler naturae as a moral

basis for human law. He says—“That there is such a thing as natural law is commonly proved both a priori and a posteriori; the former the more subtle, the latter the more popular proof. It is proved a priori by shewing the agreement or disagreement of anything with the rational and social nature of man. It is proved a posteriori by certain or very probable accounts we find of anything accepted as natural law among all nations, or at least the more civilized. For a universal effect requires a universal cause; now such a universal belief can hardly have any cause except the common sense of mankind."1

In the slow and spasmodic evolution of law it is not surprising that international law should be a later development than the civil law of states. It is so of necessity, for the idea of the collective personality of the nation must be well developed and recognized before moral and legal accountability as such can be attributed to it.

The extreme doctrine of individual liberty has been applied to nations and those who have exercised sovereign authority in them, in quite as full measure as individual liberty is asserted in the savage tribes which acknowledge no law or authority. The doctrine that the king can do no wrong, though not maintained as sound ethics, has prevailed because there was no adequate force within or without the state to judge, restrain or punish him. Not only philosophers but all normal people recognize the applicability of the moral law to the relation of states to each other with the same force as it applies to the relations of natural persons. The difficulty has been, and still is, to agree on methods of ascertaining the general consensus of opinion as to the principles of the natural law, the moral law, and to establish instruments to apply and enforce them. There is the same need of restraints over the conduct of nations as over that of natural persons. They are actuated by similar passions and motives of interest and advantage. Perhaps the ultimate goal to be reached is a condition in which national personality will disappear, and all men be guided by accepted principles of human relations, but

1 De Jure, Book 1, Ch. 1, XII.

this age must deal with its own problems and conditions in practical ways, leaving those which a higher and better civilization will present to be dealt with by posterity.

Grotius discusses domestic relations, inheritance, wills, the acquisition, possession and transfer of property, real and personal, and many other topics of the law as generally administered, and by particular nations, and bases many of his statements of international law on the rules generally observed in private as well as public matters. He recognized the right of rulers to exercise and transfer political power as property, without regard to the wishes of their subjects. In this he merely followed the accepted doctrines and practices of the European rulers of his time. He asserts the right to levy war for a just cause, and undertakes to discriminate between the just and unjust grounds. The work is so full of quotations, discussions, and illustrations from ancient and modern instances that no brief summary can indicate the wealth of valuable matter it presented to his contemporaries. The reception given to it by the public was most flattering, and its influence in promoting international law has been very great.

Grotius was not the first modern writer on the subject of international law. He was preceded in Italy by Machiavelli, some of whose principles are generally regarded as abominable, and Alberticus Gentilis, who defended him. In Spain Francisco Suarez, Francisco de Victoria and Balthazar Ayala published works dealing with the subject. None of their writings gained anything like the prominence of that of Grotius. In 1672 Pufendorf's De Jure Naturae et Gentium was published and was followed in 1702 by Bynkershoek’s De Dominio Maris, and other writings later.

Vattel's Droit des Gens published in 1758 added much to the structure of international law, and was accepted as a leading authority on the subject. It, like that of Grotius, discusses many of the recognized principles of civil law and applies them to the relations of nations. Vattel, however, maintains that there is a difference in the law applicable to private persons and to states. He says—“When therefore, we apply to nations the duties which the law of nature prescribes to indi

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vidual man, and the rights it confers on him in order to enable him to fulfil his duties, since those rights and those duties can be no other than what are consistent with the nature of their subjects, they must, in their application, necessarily undergo a change suitable to the new subjects to which they are applied. Thus, we see that the law of nations does not, in every particular, remain the same as the law of nature, regulating the actions of individuals."2

Since the time of Grotius many writers have published works on international law, and its principles are recognized and enforced between private litigants by the courts of all the leading nations, though no tribunal has yet been created with power either to secure uniformity in the rules applied or to enforce the observance of any of its principles by the sovereign nations. Many of its princples are generally agreed on by these authors, and have been accepted as a part of the civil law of continental Europe and of the common law of Great Britain and America. Yet with all the teachings of so many able men, the fundamental doctrines of international law still leave a wide field for conflicting claims of right, with neither clear rules to determine them, nor any authority empowered to make or enforce such rules. The only supreme power

2 Vattel's Law of Nations. Preface XI.

3 In Great Britain,-Hobbes, Austin, Bentham, Manning, Polson, Wildman, Hosack, Phillimore, Twiss, Amos, Creasy, Hall, Maine, Lorimer, Levi, Lawrence, Walker, Baker, Smith and Westlake.

United States—Kent, Wheaton, Woolsey, Halleck, Field, Forbes, Scott, Wharton, Davis, Moore, Bridgman, Snow and Taylor.

France-Funck-Bretano and Sorel, Pradier-Fodere, Bonfils, Despagnet, Piederievre, Gallaudet.

Germany-Schmalz, Kluber, Saalfield, Heffter, Oppenheim, Bluntschli,
Hartmann, Holtzendorff, Bulmerincq, Gareis, Ullmann, von Liszt.

Italy-Casanova, Fiore, Carnazza-Amari, del Bon, Sandona, Pertille,
Pierantoni.
Japan-Takahoshi.

Spain-Bello, de Pando, Riquelme, Alcorta, de Olivart, Acosia, Cruchaga.

Miscellaneous-Bornemann, von Martens, Ferguson, Rivier, Matzen, Nys.

Argentine Republic-Calvo.

known on earth is that at the head of the nation. There are now more than fifty such heads, and there are at all times many controverted questions of right between them for the determination of which there is no recognized and generally accepted law. As commerce is extended and inventions multiply new questions of right and of expediency and utility arise calling for authoritative settlement, yet no such power exists. Arbitration is a primitive alternative for strife, and accomplishes good results in most cases where the parties agree to submit to it, but it lacks the essential attributes of an efficient judicial system. It starts with an agreement to arbitrate and ends with voluntary submission to the award of the arbitrators. To be efficient a court must be constituted in advance, have power to receive complaints and compel answers to them, decide the controversy and enforce performance of its judgment.

Sovereigns, especially those whose power is based on military combination, have thus far refused to submit to the authority of any tribunal questions affecting national honor or vital interests. As these are the matters over which nations go to war, arbitration treaties which exclude them amount to no more than a means of disposing of minor controversies, leaving the major ones to the arbitrament of force.

The theory of the government of the United States is that every officer from President to the lowest employee of the government is subject to the law, and that all governmental functions are carried on by authority of and in accordance with law. The Constitution defines and distributes governmental powers. It recognizes the existence of international law and gives the Congress power

To define and punish piracies and felonies committed on the high seas and offenses against the law of nations."'4

The growth of the law of nations has been very similar to that of the common law of England. Customs more or less general have been accepted as binding rules of conduct. Among these customs is one which runs back to time immemorial, that of waging war at will against any adversary that the sovereign may select, and for any cause or on any

4 Const. of U. S. Art 1, Sec. 8.

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