International Law. Lord Stowell first invented it to meet the case of neutral vessels which, in the war between Great Britain and Revolutionary and Imperialist France, had endeavored to evade a prohibition to engage in the enemy's carrying trade by interposing a neutral port between their point of departure and the forbidden destination. Whatever may be thought of the original attempt to curtail the area of neutral trade, there can be no doubt that the doctrine of Lord Stowell was sound, and that it could be applied with perfect propriety to cases of blockade and contraband, where the right of the belligerent to interfere is clear and unmistakable. Accordingly, the rule was so applied, and general acceptance has made it a part of the law of nations. American vessels were the chief sufferers from it at first; but the courts of America not only adopted it in the civil war with the Southern Confederacy, but gave it an extension which is looked upon, in some quarters, with suspicion and dread.1 The activity of Prize Courts is expended for the most part upon questions of pure maritime law; and consequently that portion of the International Code has a clearness and precision unfortunately absent from some of its other titles. But International Conferences and Arbitral Tribunals deal with any matters that are referred to them, and their decisions may, therefore, embrace subjects wholly removed from the sea and the affairs connected with it. Thus the decision of Marshal MacMahon, given in 1875, as arbitrator in the dispute between Great Britain and Portugal with regard to Delagoa Bay, did much to clear up a difficult point in the law of Occupation,2 and it is quite possible that the decisions of the West African Conference of 1884-1885, upon the notifications to be given to one another by the parties to it of any fresh acquisition of African territory by Occupation, may in time develop into a general rule of International Law.3 In estimating the relative value of the decisions of Prize Courts and other tribunals on the one hand, and the writings of 8 See § 95. 1 See § 276. 2 See § 93. the great publicists and the provisions of treaties on the other, we must remember that the British and American lawyer is brought up in reverence for the judgments given by great judges in cases that have actually occurred, whereas the lawyer of France or Germany looks to the Code of his country and to the Code only. In these and many other countries the decisions of courts do no more than settle the cases before them. No legal rules are deduced from the judgments rendered; and precedents count for little in argument. Accordingly, when a jurist turns his attention to international affairs he brings to their investigation a mental habit already formed. If he belongs to one of the countries of the Continent of Europe he will instinctively search for a Code, and will find some approach to one in the writings of publicists of repute and in collections of great treaties. But a British or American jurist as naturally and unconsciously commences to examine recorded cases, and finds in them the most authoritative statements of the rules he is searching for. Each attitude is correct within limits; but, if carried to excess, leads to erroneous conclusions. In the consideration we have given to authoritative books, treaties, and judicial or quasi-judicial decisions, we have endeavored to discover by careful analysis their value as sources of International Law; but it must always be borne in mind that no rule, wherever found, can be regarded as law till it has received the express or tacit consent of states and has been generally adopted in transactions between them. § 65. Next among the sources of International Law come State Papers other than Treaties. Treaties are national acts of a specially deliberate and solemn kind, and are rightly placed in a class State papers other by themselves. But other state papers may be important as sources of International Law. Questions at than treaties. issue between states are often discussed in them with conspicuous learning and ability, and occasionally an international controversy clears up a disputed legal point or advances the application of principles which have before received little more than an otiose assent. Thus the Silesian Loan Controversy between Great Britain and Prussia in the middle of the eighteenth century 1 placed beyond possibility of doubt the rule that a state cannot make reprisals upon money lent to it by private persons belonging to another country. And again, the stand taken by the United States Government first in 1793 in favor of a wide interpretation and strict enforcement of its own neutrality obligations," and afterwards, a generation ago, against a somewhat loose interpretation of the duties of neutrality by Great Britain in the case of the Alabama and her sister cruisers, has led to a great increase in the strictness with which the principle of absolute impartiality, conceded on paper, but till recently not very closely adhered to in practice, has been applied to the conduct of neutral states. The controversies attending the formation, progress, and dissolution of the two great leagues known as the Armed Neutralities of 1780 and 1800 did almost as much to clear up the question of neutral rights as the Alabama controversy and the action of Washington in his second administration did to clear up the question of neutral duties. Many state papers are, from a legal point of view, worthless; others have but a .emporary and evanescent value. But now and again some master mind produces a document or series of documents which change the whole course of international relations and become sources of law. It must be remembered that a large proportion of the questions which arise between states are never heard of outside the walls of foreign offices. Either they are too simple to admit of doubt, or they are at once referred to the law officers of the governments con 1 See § 198. 2 See § 244. 3 See §§ 261-263. Manning, Law of Nations, Bk. V., Ch. VI. cerned, whose opinion, given officially but not published at the time, if ever, is taken as conclusive and acted upon immediately. In this way International Law is always undergoing a process, not indeed of formation, but of crystallization. Floating ideas harden into definite rules, or one of two opposite views receives almost imperceptibly the consecration of practice. § 66. The last of the classes into which we divide the sources of International Law may be described as Instructions issued by States for the Guidance of their own Officers and Tribunals. sued by States for their own Officers We have not considered these documents under the previous head, because they are of a domestic character, and are not drawn up with a view to any controversy Instructions isbetween states. But though they have no the Guidance of other object than the regulation of the con- and Tribunals. duct of the agents and servants of the government which issues them, they may have a far wider effect than was intended or expected by their authors. When drawn by skilled jurists, they sometimes decide knotty points in a manner which proves so valuable in practice that other states adopt it. The French Marine Ordinance of 1681 dealt with the then nebulous and uncertain subject of Prize Law in a masterly manner. It was commented on by Valin in 1760, and from it Lord Stowell borrowed freely in his judgments on maritime cases. Thus what was originally intended as a guide to French cruisers and French tribunals became in time, and as to some of its provisions, a source of International Law. The Instructions for the Guidance of the Armies of the United States in the Field bid fair to attain a similar position in respect of warfare on land. Already they have been referred to and quoted with great 1 respect in many treatises, and several states have issued corresponding manuals, all of which concur in making the laws of warfare on land more humane than they have been even in recent practice. We have now been through the various sources of International Law. We see that any national act whereby a state signifies its assent to a given rule may become a source of law, provided that the rule in question is a new one. If it wins general assent it becomes a part of International Law. If it fails to be adopted in practice, it is but a pious opinion, however excellent it may be in itself. But universal obedience is not meant when we speak of general assent. Many rules of International Law have been violated on one pretext or another by states which fully acknowledge their validity. No law can expect to be always obeyed, least of all a law which has no power at its back to compel submission and punish disobedience. But though International Law is in this predicament, it is also true that flagrant and stubborn disregard of its well-established precepts is very rare, and that states on the whole show a praiseworthy willingness to govern their conduct towards each other by rules to which they have given an express or tacit consent. § 67. From the sources of International Law we pass to its divisions. There is no subject on which the publicists of the seventeenth and eighteenth centuries are more at variance with each other than this. Divisions of Inter- at division useless. Grotius, as we have seen,2 distinguished between a Natural and a Voluntary Law of Nations. His successors discussed at length the relations of Natural Law to International Law, and their distinctions and conditions multiplied as each one commented upon the opinions of his predeces 1 E.g., Maine, International Law, p. 24. 2 See § 33. |