pendence and individuality of nations and as a remedy seems not only impracticable but liable to be worse in its workings than the disease which it endeavors to cure. TOPICS AND REFERENCES 1. Nature of International Law Walker, "Science of International Law," chaps. I and II. Oppenheim, "International Law," vol. I, 2d ed., 3-9. Halleck's "International Law," Baker's ed., vol. I, 50, 51. 2. The Propriety and Significance of the Term "International Law"– Holland's "Jurisprudence," 10th ed., 380, note. Wheaton's "International Law," par. 12. Hall, "International Law," 6th ed., 13-16. 3. International Public Law, International Private Law, or Conflict of Laws, the Comity of Nations, Diplomacy, International EthicsW. E. Hall, "International Law," 6th ed., 118, 119. Wharton's "Conflict of Laws." Foster's "American Diplomacy," 2, etc. 4. International Law Compared with Municipal or National LawMoore's "Digest," vol. I, pars. 1 and 2. Holland's "Jurisprudence," 10th ed., 40 and 58. Walker's "Science of International Law," 46-52. 5. International Law Part of Municipal Law Oppenheim, "International Law," 2d ed., vol. I, pars. 20-25. Moore's "Digest, International Law," vol. I, 2-4. Maine's "International Law," 36, etc. 6. Codification of International Law Higgins's "Hague Peace Conferences," 8-17. Holland's "Studies," etc., 59-78. Oppenheim, vol. I, 2d ed., 35-44. 7. Observance of International Law Higgins, "Binding Force of International Law." Hall's "International Law," 6th ed., 215. Moore's "Digest," vol. VI, Oppenheim, vol. I, 2d ed., par. 156. par. 987. CHAPTER II THE SOURCES OF INTERNATIONAL LAW. THE EARLY INTERCOURSE OF PEOPLES 12. The Original Motives and Causes of International Law. -International law, properly so called, as it exists in modern times, is the law regulating the intercourse of sovereign states. As a consequence, the science of modern international law did not exist in the times of antiquity and of the Middle Ages, before sovereign states were known or existed, with their independence and equality and consequent rights and duties. But in the early times mentioned there did exist intercourse between the peoples and nations as then existing, and from that intercourse grew certain rules, codes, and usages which served, in a way, the purposes of such intercourse and have since gone into the making of modern international law. From this intercourse and from the motives and causes of this intercourse we can then find the fountainhead of international law. These motives can be said to be due to the needs and to the social and communal spirit of mankind, which existed from the beginning until the present time. It is true that these rules and customs were sometimes religious in their nature and origin and sometimes a result of humane instincts for the mitigation of the horrors of early warfare, but most frequently they were the outgrowth of the human need for co-operation and social intercourse which had gradually extended from groups of human beings and families to communities, cities, and so-called nations. These combinations, by further extension in modern times, brought into exis tence the general association of civilized states known as the family of nations, with its laws and usages. Phillimore says of this extension, that "to move and live and have its being in the great community of states is as much the normal condition of a single nation as to live in a social state is the normal condition of mankind."1 13. The Sources of International Law.-In addition to the causes just mentioned, from which originated early international usage and intercourse, there are other sources to which modern international law owes its formation and growth. The first source, then, of international law, in the opinion of the writer, is (a) Customs and rules of peoples and nations in early days. Concerning this, Professor Moore says: "Of the positive element of the new science the Roman civil law was the chief source, since it was the foundation of the jurisprudence of the countries of continental Europe, whose laws and practices were chiefly consulted.”2 In previous paragraphs allusion has been made to the existence of rules and customs accompanying the mutual intercourse of peoples in war and peace in the earlier days. These will be referred to later, when dealing with the history of the international relations of antiquity, and though the rules of war especially were more cruel and drastic than now, still we will find certain elementary usages which are not unfamiliar to us even in the present century. The various sea codes and laws previously mentioned can be classed among the rules to which reference is made. As a second source can be named (b) The treatises of the great publicists, such as Grotius, Gentilis, Bynkershoek, Vattel, and others of earlier times. The great work of Grotius, entitled "De Jure Belli ac Pacis," was published in 1625, in the early days of the Thirty Years' War, and its publication and reception marks a period in the history of civilization. Grotius has been called the father of inter1 Phillimore, vol. I, par. 7. 2 Moore's "Digest," vol. III, p. 2. national law, and without doubt his works, with their deep and far-reaching effect, deserve to be mentioned among the primary sources of modern international law. "With Grotius," says Woolsey, "a new era begins. His great work 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 mind and i's claim to respect as the father of the science have given to his treatise, 'De Jure Belli ac Pacis,' an enduring influence." 1 Another important source of international law is found in (c) International treaties and agreements. These treaties are the result of long negotiations, but more especially are derived from various international conferences officially assembled and whose product becomes universally adhered to and put in practice. It is not essential that all civilized states should be represented in such conferences or congresses, but it is necessary that they should adhere to the results either by act or in principles. The principles of such treaties as the treaty of Westphalia, the congress of Vienna, and the treaty of Paris in 1856, and some of the conventions of The Hague conferences, are examples of this nature. A fourth source is (d) Treaties between states. These may be between two or more states or between a considerable number of states, with the purpose of declaring existing laws or recommending the establishment of newly defined usages or principles. These treaties, without creating rules of international law, are early steps taken for their sanc1 Woolsey, 6th ed., "Int. Law," pp. 29, 30. tion and toward their general adoption. Among treaties of this nature can be mentioned the Treaty of Washington of 1871, with its three rules as to neutral states which have since been so much further extended in authority by their practical acceptance in the conventions of The Hague conferences. Next can be named the (e) Decisions of arbitral and judicial tribunals. Among these tribunals can be named courts of arbitration, mixed tribunals, international commissions of inquiry, and national prize-courts, especially those of last appeal. Particular decisions of this class can be found in those of the United States Supreme Court in prize cases, the decisions of Lord Stowell and other famous jurists in English prize cases, in that of the Geneva arbitration which settled the Alabama claims in 1872, the finding of the North Sea commission of inquiry of 1906 which settled the Dogger Bank affair, and the decisions of The Hague tribunals in such questions as those of the Newfoundland fisheries, etc. The decisions of national prize-courts, although of value, as Dana shows, because they exhibit the judicial manner of settlement after full argument in open court, on both sides of the question, are after all unilateral and national. In speaking of these Chief Justice Marshall, in the case of the Thirty Hogsheads of Sugar v. Boyd, says: "The decisions of the courts of every country show how the law of nations, in the given case, is understood in that country, and will be considered in adopting the rule which is to prevail in this.”1 We come next to the sixth of the sources which consists of the (f) Agreements and rules formulated by various official and unofficial international bodies of accepted standing. These agreements and rules can remain simply as expression of what international law should be in the opinion of men learned in the law, or, if they are properly assembled, they can present protocols, declarations, or conventions which, adopted and 1 Moore's "Digest,” vol. I, p. 2. |