favor of the historical method is strengthened by the absence of

as to the basis of

Ethics.

§ 17.

We have arrived at the conclusion that the method of International Law is historical rather than ethical, on the The conclusion in ground that those who have to administer its rules determine them mainly by a reference to precedent and usage. But there are other congeneral agreement siderations which may be urged in support of the same position. While ethical science remains in its present condition there is no hope of a general agreement as to the nature of its standards and the mode of determining them. The existence of some of them is denied, and, in spite of eclectic tendencies, the intuitional and utilitarian schools are as far apart as ever. 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 upon the subject. It is true that most of the great publicists have endeavored to determine the rights and duties of states according to principles which seemed to them just and righteous and consistent with human nature at its best, and nevertheless they have given us one tolerably uniform system and not scores of conflicting systems. But their agreement in detail does not arise from a similar agreement in principle. It is the result of a common neglect to work out with logical precision the principles on which they based their systems. As we have stated before, they refer to usage, and argue from the common consent of nations, while they more or less consciously imagine they are working out a theory of absolute right. 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. The principles and the rules based upon them may be morally good or morally bad; but they determine the conduct of governments in relation to one another, they define the rights of states and set forth their obligations, and therefore they, and they alone, are International Law. 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.

§ 18.

in International

But while we shun altogether any such confusion, and hold those rules to be International Law which states do actually observe, without regard to their goodness or The place of ethi badness, we do not imagine that the moral cal considerations quality of these rules is a matter of indifference, Law. or believe that writers on public law need not trouble themselves about it. All we contend for is that the question what are the rules of International Law on a given subject, and the question whether they are good or bad, should be kept distinct. They differ in their nature and in their method of solution, and nothing but harm can come of any attempt to unite them. Yet it is the duty of publicists to put ethical considerations prominently forward in many parts of their work. Even in a book on some portion of ordinary Municipal Law, we should expect to find expressions of opinion upon various rules, the justice of which was disputed among those competent to form a judgment. The writer, for instance, of an account of the English Criminal Law might hold strongly that it was still unjust to women. in some of its provisions, and he would probably enforce his view by argument when he came to deal with those portions of his subject. Now, if no reasonable objection can be taken to such a course, it cannot be doubted that the publicist is justified in suggesting, on moral grounds, alterations in International Law where he deems it open to objection, provided always that he does not proceed to regard as law the new

rule he has suggested, because he believes he has proved it to be much superior to the old. But in addition to cases of change and reform, there are other cases which must be dealt with on ethical grounds. If If a point of Municipal Law is doubtful, men resort to a supreme legislature for an interpreting statute; but if a point of International Law is doubtful, they can only resort to general reasoning for a convincing argument, unless, indeed, they settle the question by blows. He who in such a case bases his reasoning on high considerations of morality may succeed in resolving the doubt in accordance with humanity and justice. International Law in many of its details is peculiarly liable to disputes and doubts, because it is based upon usage and opinion. Sometimes there are two or more diverse usages, each supported by a considerable number of precedents, and each backed up by a respectable body of opinion. Sometimes a new question arises, unlike in many respects any that have occurred before. No precedents exactly fit it, and among recognized principles there is more than one from which a rule to settle the dispute might be deduced. Indeed, our science progresses by reason of the rise of these doubtful points. After they have been discussed, debated, and perhaps fought over, for many years, a clear and consistent body of usage with regard to them emerges from the confusion, and a new collection of rules is added to International Law. The controversies of one generation produce the undoubted law of the next; and meanwhile a fresh series of difficulties has arisen, which in its turn will give birth to a new chapter of accepted law. There is great scope for argument in the settlement of these controversies; and ethical principles should be put prominently forward by all writers who deal with them. Nations are sure not to forget considerations of self-interest; but the publicist should rise above national prejudice, and endeavor so to use his influence as to make the system he expounds at the same time more scientific and more just.

§ 19.

Summary of

of results arrived at

in this chapter.

We are now in a condition to sum up the results of a long and somewhat intricate chain of reasoning. Briefly, they are these. The controversy as to whether the term Law is properly applied to the rules international conduct, is a mere logomachy. If we follow Austin and hold that all laws are commands of superiors, International Law is improperly so called. If we follow Hooker and hold that whatever precepts regulate conduct are laws, International Law is properly so called. But since almost all writers apply the term Law to the rules which guide states in their mutual intercourse, it seems best to adopt it, on the clear understanding that the word is used in Hooker's sense. International Law proceeds first by the method of inquiry into the practices of states in their dealings with each other and into the acknowledged principles on which those practices are based. Having discovered what they are, it has next to classify them, derive rules from them, and reduce them to system. Incidentally, however, it deals with the question of what the rules ought to be, whenever a change is felt to be desirable, or a doubt has to be resolved. A writer on International Law, therefore, must cease to rely exclusively upon the method of observation and classification when he wishes to clear up a doubtful point or bring about a needful reform. For a moment his science ceases to be inductive, and he flies to general reasoning, knowing that if he convinces all concerned, he ipso facto resolves the doubt or changes the law. He does not set a sovereign legislature in motion: in a sense he himself legislates; for he controls the opinion that is really supreme. And this he does without deserting the positive method and confounding the ideal with the real. A rule may in time become a part of International Law owing to the cogency of his arguments; but he must not say it is law until it has met with general acceptance and been incorporated into the usages of states.

The history of

goes back to

ancient Greece

and Rome.

It

CHAPTER III.

THE HISTORY OF INTERNATIONAL LAW.

divides into three periods.

§ 20.

By common consent International Law is concerned with the usages of civilized powers. Its history is the history of that system of rules for the guidance of International Law states in their external relations, which has sprung up among the nations of Europe and extended itself to all civilized communities outside the European boundaries. This system, in many of its most important parts, is the growth of modern times. Its fundamental principles are barely three hundred years old. But, inasmuch as several portions of modern usage, for example, the law of maritime capture, — originated in a period long anterior to that time, and many states which now exist can trace back for centuries previous the current of their national life, it seems best to begin with the earliest records we possess of those nations whose political ideas and continuous existence have been formative influences in the development of the law which now governs the external relations of the powers of the civilized world. The little city-communities of ancient Greece and the mighty republic of Rome are thus our backward boundaries. We have to begin the history of International Law with a description of the ideas current among them and the rules which guided them in their dealings with other states. This must not be held to imply that the other nations of antiquity had no foreign policy. It simply means that their interna