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tion whether or no a belligerent state should have the right to stop trade between its enemy and neutrals in articles directly useful for war, is a most important question of public policy, and is settled by the code which the great society of independent and civilized states has adopted for the regulation of the conduct of its members towards each other. The fact that it is found convenient to allow the belligerent to deal first with the offending individual and his property, does not deprive the matter of its international quality. It belongs to the sphere of the mutual dealings of civilized states. But the same statement can hardly be made concerning those questions of private right which arise owing to differences in the rules laid down by states for the regulation of such matters as contracts, wills, and intestate succession. When a man dies intestate in one state leaving property in another, or makes a contract in one state to be performed in another, tribunals have to decide whether the law of the former state or the law of the latter shall prevail in the common case of a difference between them. There are many other questions of the like kind in which a conflict between two or more systems of law has to be settled, and in the course of time a large number of rules has grown up for their settlement. These rules are adopted and administered by the courts of most civilized states, and are sometimes called Private International Law. But the title is a misnomer. The rules in question cannot with propriety be called international. They deal with internal and private matters. A state can forbid its tribunals to enforce


of them without committing an offence against the law of nations. The branch of jurisprudence which deals with them was properly termed by Judge Story, one of the greatest of its expounders, The Conflict of Laws; and we shall not attempt to consider it under any of the chapters of the international code. It is, however, necessary to add that when we come to formulate a state's Rights of Jurisdiction, we shall have to define the limits of its authority over cases such as we have just described. But it is possible to do this without entering upon a discussion of the minute and highly technical rules which are administered by courts in deciding matters of private right where the law of one country conflicts with the law of another.

1 Holland, Jurisprudence, 286-288.

§ 7.

the science.

The name International Law is much more modern than the system to which it is applied. Facts and theories as to

the origin and basis of our science have been The history of the names given to reflected in its nomenclature. A great number

of its precepts and many of its diplomatic forms were derived from Roman Law, directly by civilians or indirectly by canonists, and accordingly it was sometimes entitled Civil Law (Jus Civile). Bishop Ridley, as Visitor of the University of Cambridge in the reign of Edward VI., declared in a speech to that learned body, “We are sure you are not ignorant how necessary a study that study of Civil Law is to all treaties with foreign princes and strangers.”1 And about a century and a half afterwards Locke, in his work on Education, wrote this quaint and significant passage, “A virtuous and well-behaved young man, who is well versed in the general part of the Civil Law (which concerns not the chicane of private cases, but the affairs and intercourse of civilized nations in general, grounded upon principles of reason), understands Latin well, and can write a good hand, one may turn loose into the world with great assurance that he will find employment and esteem everywhere.” Meanwhile other influences had made themselves felt. The Puritan idea that the Bible contained a complete code of conduct applicable to all possible conditions caused such works to be written as Richard Bernard's The Bible battels, or the sacred art military; for

1 Nys, L'Histoire Litteraire et Dogmatique du Droit International en Angleterre, 27.


the rightly wageing of warre according to the Holy Writ. This was published in 1629, four years after the epoch-making work of Hugo Grotius, De Jure Belli ac Pacis, had appeared at Paris. Pufendorf, the great disciple of Grotius, published in 1672 his De Jure Nature et Gentium, the title of which bore witness to the influence exercised on our subject by the theory of a Law and a State of Nature. Similar evidence is afforded by the names bestowed upon their works by many of the great publicists of the last century. But after the publication by Vattel in 1758 of his Droit des Gens, the phrase Law of Nations was generally used to indicate the international code. Its capital defect as a name was the fact that it exactly translated the Latin Jus Gentium, and thus lent color to the erroneous fancy that a large and important department of the law of ancient Rome was concerned with the mutual rights and duties of independent states. The great English jurist, Jeremy Bentham, put an end to the difficulty by coining, in 1780, the phrase International Law.1 It was a translation of part of the title of a work by Dr. Zouch, who was Judge of the English Court of Admiralty in the reign of Charles I. and author of a book entitled De Jure Feciali, sive Judicio inter Gentes. The phrase Judicium inter Gentes, happily anglicized into International Law, set forth with admirable brevity and clearness the distinguishing characteristic of our science. It deals with the relations of states to one another. Its rules refer to the affairs which arise between them. No better name than International Law could be found for it. Nearly all modern writers have adopted the phrase ; and there is little chance of its being superseded by any other title.

Principles of Morals and Legislation, XIX., $ xxv.



$ 8.

(1) Is Interna

rules from

ence ?

In discussing the nature of our science, we find ourselves confronted by two great questions. We have first to con

sider whether International Law is, properly The two problems: tional Law really speaking, law at all. And in the second place, Law! (2) Are its we must settle for ourselves the problem of the

and intuition or experi- origin and essential character of the rules we

study. Can they be deduced from principles of universal authority, which every man of sense discovers for himself by the exercise of his reason, but which exist independently of human arrangements and human rules? Or must they be generalized from the practice of states in their dealings with one another? In other words, are the methods of International Law transcendental and a priori, or are they historical, inductive, and classificatory? We will deal with these •two questions in the order in which we have stated them.

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§ 9.

The controversy with regard to the first question dates from the publication of Austin's great work on Jurisprudence

in 1832. He defined Law in its widest sense as The Austinian

66 A rule laid down for the guidance of an in

telligent being by an intelligent being having power over him.”] This definition, read in the light of the 1 Austin, Lectures on Jurisprudence, I.

definition of Law excludes International Law.

explanations of its author, requires that any precept concerning conduct shall, before it can properly be termed a law, (a) command not an isolated act or forbearance, but a course of conduct; (6) proceed from an individual or body of individuals who have the intelligence to conceive and the power to express a wish with regard to the conduct of other intelligent beings; (c) be enforced by the fear of evil to flow from its authors and fall upon those to whom it is set in case they disobey it. If an individual possessing on the one hand intelligence, and on the other hand power to inflict punishment, issues a general command to any one over whom he can exercise his power, that command is a law and the person who issues it is a legislator. But laws are more often made by a number of men acting in concert than by one man acting alone. If such a body possesses corporate intelligence and corporate volition, — if, that is to say, it is a determinate body, all of whose members can be known, a body capable of thinking, willing, and acting as a whole, then it can set a law, provided that it is able to make those who disobey it suffer some predetermined penalty. This penalty is called a sanction; and the three essential elements in any law are the Command issued to those who are expected to obey it, the Obligation resting on them to obey it, and the evil, or Sanction, to fall upon them in case they do not obey it.

The Austinian argument goes on to state that rulers of political communities, whether individuals or bodies, are the great earthly legislators. They wield the stored-up force of the community, and can make their commands obeyed with far greater facility and over far larger areas than ordinary individuals. The law they set is called Positive Law, in order to distinguish it on the one hand from Divine Law, and on the other from those precepts which men obey, though they are not set directly or indirectly by political superiors, and which are called Positive Morality. Of the precepts of Positive Morality, some are law proper, and some are not. Those that have a determinate author and are

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