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ually approaching towards the adoption of a consistent body of doctrine, they have not yet come to an agreement upon such questions as the exact character of the processes to be followed in their reasoning, or the relation of their science to Ethics and Jurisprudence. Accordingly each writer's definition is colored, to a certain extent, by his own views; and the definition at the head of this chapter is no exception to the general rule. It regards International Law, not as an instrument for the discovery and interpretation of a transcendental rule of right binding upon states as moral beings whether they observe it or not in practice, but as a science whose chief business it is to find out by observation the rules actually followed by states in their mutual intercourse, and to classify and arrange these rules by referring them to certain fundamental principles on which they are based.
The precepts of
It will be seen that in the definition we have given, no mention is made of rights and obligations of states. These
terms have been carefully excluded in order to are rules whether avoid the controverted question whether Inter
national Law is, strictly speaking, law or not. If it be law proper, then it confers rights and creates obligations; but if the term law is improperly applied to it, we cannot with propriety speak of rights and obligations as flowing from it. In framing a definition, it is advisable to include as little controverted matter as is possible without sacrificing clearness to a desire of avoiding difficulties. Acting upon this principle, we have used the neutral term rules instead of the disputed word laws, and have discarded altogether the phrase rights and obligations. The question whether our science is properly described as law will be found discussed further on;1 but whichever side in the controversy we take, we may adopt the definition at the head of this chapter.
i See 88 8-11.
The governments of all states, whether civilized or barbarous, are compelled to exert activity, not merely in conducting their internal affairs, but also in regulating International Law their conduct towards the governments and peo- served by states, ples of other states. Even where a state adopts there some of its
commands are disa self-sufficient theory of national life, and en- regarded. deavors, as China did till quite recent times, to keep its people from all intercourse with foreigners, it does not escape from the necessity of dealing with them. It cannot act as if it were alone in the world, for the simple reason that it is not alone. The whole machinery of non-intercourse is created with a view to other states, and absorbs in its working no small portion of the care and attention of the government. If, then, external affairs have from the necessity of the case to be dealt with by states who have adopted a policy of the most rigorous isolation, it is clear that the vast majority of peoples, who desire a greater or less amount of intercourse with their neighbors, impose thereby upon their rulers the task of dealing to a very large extent with foreign nations. The coexistence of states in proximity to one another renders it necessary for them to pay some sort of regard to each other; and the more civilized the states, the more intimate the intercourse. Civilization not only provides men with many interests in common; but it also tends to remove man's suspicion of his brother man. Commerce, intermarriage, scientific discovery, community of religion, harmony in political ideas, mutual admiration as regards achievements in art and literature, identity of interests or even of passions and prejudices, - all these, and countless other causes, tend to knit states together in a social bond somewhat analogous to the bond between the individual man and his fellows. But just as men could not live together in a society without laws and customs to regulate their actions, so states could not have mutual intercourse without rules to regulate their conduct. The body of such rules is called International Law. We do not say that it is invariably observed. Like other law, it is sometimes disregarded by those who are supposed to submit to it; and owing to the absence of coercive force to compel nations to obedience, it is more liable to be violated than are the laws laid down by the sovereign power in a state for the guidance of its subjects. But, all statements to the contrary notwithstanding, it is generally observed. A state here and there may sometimes disregard one of its plainest precepts; but it does “determine the conduct of the general body of civilized states," and this is all we assert in our definition,
applies to civilized
Strictly speaking, there is not one International Law, but several. Wherever a group of peoples are compelled by International Law local contiguity or other circumstances to enter states only, though into relations with each other, a set of rules to Christian states. and customs is sure to grow up among them, and their intercourse will be regulated thereby. The rules will differ at different times and among different groups. Their nature will be determined by the ideas current upon the subject of international intercourse and the practices permissible in warfare. In these matters the notions of classical antiquity differ immensely from those of modern Europe, and in our own day there is a great gulf fixed between the views of European and American statesmen on the one hand and those of the potentates of Central Africa on the other. But though there are several systems of International Law, there is but one important system, and to it the name has been by common consent appropriated. It grew up in Christian Europe, though some of its roots may be traced back to ancient Greece and ancient Rome. It has been adopted in modern times by all the civilized states of the earth. The nations of the American continent are bound by it no less than the powers of Europe. We have, therefore, in our definition, spoken of it as “the rules which determine the conduct of the general body of civilized states.” But we have not thought fit to follow the example of some writers, and limit it still further to Christian states. It is quite true that modern International Law grew up among nations which professed Christianity, and that many of its chapters would have to be very differently written if Christian influences had been absent from their formation. But it is also true that more than one non-Christian state has adopted the European international code. Turkey, for instance, and Japan make formal profession of regulating their conduct by it, and expect other states to observe it in dealing with thern. In the face of such instances as these, it would be playing with facts to restrict International Law to Christian states.
$ 5. We have spoken hitherto of the mutual intercourse of states and the rules for dealing with it. But a great part of International Law consists of rules for carry- International Law ing on war, and war cannot with propriety be regulates the contermed international intercourse. Yet if it is ings, hostile
, as not intercourse it arises out of intercourse; for
well as pacific. if states could live an isolated life, though they would never be friendly, they would also never quarrel. Moreover, civilized states have in the course of ages come to adopt, and in a large measure to keep, a number of most important rules for determining their conduct when at war, both towards the enemy and towards other powers not involved in the quarrel; and the latter, who are termed neutral, have also to observe special rules with regard to the belligerents. All these rules are parts of International Law; for they guide the conduct of states in their relations with one another. We have endeavored to include them in our definition, along with the rules of ordinary pacific intercourse, under the com
1e.g. Woolsey, International Law, $ 5.
their mutual deal
prehensive phrase, “rules which determine the conduct of the general body of civilized states in their dealings with one another.”
International Law includes the rules of maritime capture, but not the rules for determining which of two conflicting systems of law shall prevail in matters
Matters belonging to the sphere of external activity are generally carried on between state and state, or, to speak
with absolute precision, between government and government. But there are certain exceptional cases where external matters have to be settled between the government of one state,
acting through its authorized agents, and priof private right.
vate individuals belonging to another state. Thus, if in time of war a subject of a neutral state attempts to carry to one of the belligerents articles useful chiefly for warlike purposes, such as arms and ammunition, the other belligerent may stop him on the high seas or in belligerent territory, and confiscate all the goods in question. In such cases the belligerent state deals directly with the neutral individual. It has not to complain to his government and get him restrained or punished by the laws of his own country; but it is allowed by International Law to strike straight at the offender and confiscate his property. We see, therefore, that our subject includes some of the dealings of states in matters of public right and public policy with subject individuals belonging to other states; and it may seem at first sight as if such cases were not provided for in the definition we have adopted. But this is a mistaken view. The neutral individual whose contraband cargo is confiscated suffers under a rule to which his government has given express or tacit consent, and if any other rule is applied it will at once protest and demand compensation for the injury done to its subject. It is only the procedure which applies in the first instance to a private person. The rules are international in the strictest sense, and moreover they deal with public affairs. To continue the illustration with which we began, the ques