GENERAL AND HISTORICAL
INTERNATIONAL LAW
CHAPTER I
DEFINITION AND GENERAL SCOPE
International law may be considered from two points of view, viz.:—
(a) From the philosophical point of view, as setting forth the rules and principles which ought to be observed in interstate relations.
(b) From the scientific point of view, as setting forth the rules and principles which are generally observed in interstate relations.
Wheaton, D., 23: "International law, as understood among civilized nations, may be defined as consisting of those rules of conduct which reason deduces, as consonant to justice, from the nature of the society existing among independent nations; with such definitions and modifications as may be established by general consent." See also I. Pradier-FodÉrÉ, pp. 8, 41.
Early writers treated especially of those principles which ought to be observed in interstate action, and the wealth of quotation and testimony introduced to establish the validity of principles now considered almost axiomatic, is overwhelming. In the days of Ayala, Brunus, Gentilis, Grotius, and Pufendorf, all the argument possible was needed to bring states to submit to these principles. The conditions and relations of states have so changed that at the present time a body of fairly established rules and principles are observed in interstate action, and form the subject-matter of international law.[1]
§ 2. Divisions
International law is usually divided into:—
(a) Public international law, which treats of the rules and principles which are generally observed in interstate action, and
(b) Private international law, which treats of the rules and principles which are observed in cases of conflict of jurisdiction in regard to private rights. These cases are not properly international, and a better term for this branch of knowledge is that given by Judge Story, "The Conflict of Laws."[2]
International law, in the true sense, deals only with state affairs.
§ 3. Scope
International law is generally observed by civilized states; even some of those states not fully open to western civilization profess to observe its rules. [3] The expansion of commerce and trade, the introduction of new and rapid means of communication, the diffusion of knowledge through books and travel, the establishment of permanent embassies, the making of many treaties containing the same general provisions, and the whole movement of modern civilization toward unifying the interests of states, has rapidly enlarged the range of international action and the scope of international law. Civilized states, so far as possible, observe the rules of international law in their dealings with uncivilized communities which have not yet attained to statehood. International law covers all the relations into which civilized states may come, both peaceful and hostile. In general, it should not extend its scope so as to interfere with domestic affairs or to limit domestic jurisdiction, though it does often limit the economic and commercial action of a given state, and determine to some extent its policy.
CHAPTER II
NATURE
§ 4. Early Terminology
The conception of those rules and principles of which international law treats has varied greatly with periods, with conditions, and with writers.
The early terminology indicates the vagueness of the conceptions of the principles governing conduct of man toward his fellows.
(a) Jus naturale is defined broadly by Ulpian[4] as "the law which nature has taught all living creatures, so as to be common to men and beasts." Grotius also uses this term, defining it as "the dictate of right reason, indicating that any act from its agreement or disagreement with rational nature has in it moral turpitude or moral necessity, and consequently such act is either forbidden or enjoined by God, the author of nature."[5] Lieber says, "The law of nature, or natural law ... is the law, the body of rights, which we deduce from the essential nature of man."[6] The discussion of jus naturale has been carried on from an early period,[7] covering many portions of the field of modern international law, and making possible the broadening and strengthening of its foundation.
(b) Jus gentium, according to Justinian, is "that which natural reason has established among all men, that which all peoples uniformly regard."[8] "Jus gentium is common to the whole human kind."[9] This idea of a body of law common to all men assumed a different meaning when states multiplied and writer after writer redefined and qualified its meaning. Jus gentium became the subject of many controversies.[10] Among the qualifying terms were "internal," "necessary," "natural," "positive."
(c) Other terms were used to name the field or portions of the field of modern international law. Jus fetiale applied particularly to the declaration of war and sanction of treaties.[11] Jus inter gentes was used by Zouch in 1650 to name the real field of international law. Law of nations was the term commonly used in England till the days of Bentham; since that time the term international law, which he adopted, has steadily grown in favor, till almost universal in the English language.[12]
The change in terminology shows in a measure the growth in demarking the field of international law.
§ 5. Historical Bases
International law in its beginning may have been largely determined by abstract reasoning upon what ought to be the principles and rules governing interstate relations; but in its later development, as it has become more and more recognized as a safe guide for the conduct of states in their relations with other states, not abstract reasoning as to what ought to be, but direct investigation of what is, has determined the character of the rules and principles. What is state practice in a given case can only be determined by reference to history. From the history of cases and practice, the general rule and principle is derived, and modern international law thus comes to rest largely upon historical bases.
§ 6. Ethical Bases
While international law now looks to history as one of its most important bases, it must nevertheless accord somewhat closely with the ethical standards of the time, and will tend to approximate to them. The growth of the body of law upon slavery has rested on both ethical and historical bases. International law is principally an output of civilized nations having certain ethical standards. Such ancient practices as the giving of hostages for the fulfillment of treaty stipulations have disappeared, and ethical bases are generally recognized in determining practice.[13] While these ethical bases should be recognized, international law cannot be deduced from the subtle reasoning upon the abstract ideas of what it ought to be. Modern international law treats mainly of what is, but what is in international relations is always conditioned by a recognition of what ought to be.
§ 7. Jural Bases
The nature of modern international law is in part due to the jural bases upon which it rests.
(a) The Roman law was the most potent influence in determining the early development, particularly in respect to dominion and acquisition of territory. International law gained a certain dignity and weight from its relation to the Roman law, the most potent legal institution in history.
(b) The canon law, as the law of the ecclesiastics who were supposed to recognize the broadest principles of human unity, gave an ethical element to early international law. Gregory IX. (1227-1241), the Justinian of the Church, reduced canon law to a code. The abstract reasoning upon its principles among the clergy and counsellors of kings, made it a part of the mental stock of the early text writers, while it strongly influenced state practice. The canon law gave a quasi-religious sanction to its observance, and in so far as international law embodied its principles, gave the same sanction to the observance of international equity. This may be seen in the religious formula in treaties, even to a late date.
(c) The common law, itself international as derived from three systems, according to tradition, by Edward the Confessor, and subsequently modified by custom, furnished a practical element in determining the nature of international law.
(d) Equity promoted the development of the recognition of principles in international law. In the early days of England cases arose which were not within the cognizance of the common law judges. The petitioner having applied to the king in Parliament or in council for justice, his petition was referred to the chancellor, the keeper of the king's conscience, who, after a hearing, required that what was equitable should be done. Thus the simpler matters came before the common law court, the more difficult before the equity court. Even now a jury largely deals with questions relating to the recovery of money, and their decision is a verdict, which is followed by a judgment. In an equity court, the more difficult problems of business and commerce are considered; and the decision of the judge is a decree.
(e) Admiralty law may be defined as in one sense the law of the sea. Anterior to and during the Middle Ages, the maritime relations of states gave rise to sea laws, many of which are to-day well-recognized principles of international law.
§ 8. International and Statute Law
Statute law proceeds from legislative enactment, and is enforced by the power of the enacting state within its jurisdiction.
International law, on the other hand, is not formally enacted, and has no tribunal for its enforcement. Resort may be had to war in case of infraction of its rules, but the issue may rather depend upon the relative powers of the two states and not upon the justice of the cause.
§ 9. How far is International Law entitled to be called Law?
If law is defined, as by Austin, "A rule laid down for the guidance of an intelligent being by an intelligent being having power over him,"[14] it would not be possible to include under it international law without undue liberality in the interpretation of the language.
In form, however, law is a body of rules and principles in accord with which phenomena take place. If these rules are not followed as enunciated by the state in case of statute law, certain penalties are inflicted. The nature of the penalty must to a great extent depend on the source. International law is the body of rules and principles, in accord with which, interstate phenomena take place. Violations of international law do not meet the same penalties as those of statute law, as they do not have the same source nor an established tribunal for their enforcement. International law is, however, in form law and in practice so regarded.[15]
CHAPTER III
HISTORICAL DEVELOPMENT
§ 10. Early Period
The history of the development of those rules and principles now considered in international law naturally falls into three periods, early, middle and modern.[16]
The early period dates from the time of the development of early European civilization, and extends to the beginning of the Christian Era. During this period the germs of the present system appear.[17]
(a) Greece. The dispersion of the Greeks in many colonies which became practically independent communities gave rise to systems of intercourse involving the recognition of general obligations.[18] The maritime law of Rhodes is an instance of the general acceptance of common principles. The main body of this law has not survived, yet the fragment appearing in the Digest, De Lege Rhodia de Jactu,[19] is, after more than two thousand years, the basis of the present doctrine of jettison. It is reasonable to suppose that though the words of other portions of the Rhodian law are lost, the principles may have entered into formation of later compilations. The recognition by Greece of the existence of other independent states, and the relations into which the states entered, developed crude forms of international comity, as in the sending and receiving of ambassadors[20] and the formation of alliances.[21]
(b) Rome. Rome made many contributions to the principles of international law in the way of the extension of her own laws to wider spheres, and in the attempt to adapt Roman laws to conditions in remote territories. In this early period Rome may be said to have contributed to the field of what is now considered private international law rather than to that of public international law. This is evident in the laws in regard to marriage, contract, property, etc. The dominance of Rome impressed her laws on others, and extended the influence of those principles which, from general practice, or conformity to accepted standards, gained the name Jus Gentium.[22]
§ 11. Middle Period
The varied struggles of the middle period—from the beginning of the Christian Era to the middle of the seventeenth century—had a decided influence upon the body and form of international law.
(a) Roman Empire. The growth of the Roman Empire, as the single world power and sole source of political authority, left small need of international standards. The appeal in case of disagreement was not to such standards, but to CÆsar. The idea of one common supremacy was deep-rooted. Political assimilation followed the expansion of political privileges.
(b) The Church. A similar unifying influence was found in the growth of the Christian Church which knew no distinction—bond or free, Jew or Gentile. Christianity, called to be the state religion early in the fourth century, modeled its organization on that of the Roman Empire; and from the sixth century, with the decay of the Empire, the Church became the great power. The belief in the eternity and universality of Roman dominion was strengthened by the Church, although materially changed in its nature.[23] Whatever the inconsistencies in Church and State during the first ten centuries of our era, there had grown up the idea, of great importance for international law, that there could be a ground upon which all might meet, a belief which all might accept, both in regard to political and religious organization. For five hundred years before the days of Boniface VIII. (1294-1303), the holder of the papal office had from time to time acted as an international judge.
The canon law, codified by Gregory IX. (1227-1241), was planned to rival the Corpus Juris Civilis. The Popes, with varying degrees of success, tried to render such international justice as the discordant elements introduced by the growth of cities and rise of nationalities demanded.[24] From the Council of Constance (1414-1418), which was a recognition of the fact of nationality, and at which the emperor for the last time appeared as the great international head, the decline of both the Church and the Empire as direct international factors was rapid.
(c) Feudalism. By the eleventh century feudalism had enmeshed both the temporal and spiritual authorities. This system, closely related to the possession of land and gradation of classes, discouraged the development of the ideas of equality of state powers necessary for the development of international law, though it did emphasize the doctrine of sovereignty as based on land in distinction from the personal sovereignty of earlier days.
(d) The Crusades (1096-1270), uniting Christendom against the Saracen for foreign intervention, awakening Europe to a new civilization, expanding the study and practice of the Roman law which feudal courts had checked, weakening many feudal overlords, enfranchising towns, freeing the third estate, spreading the use of the Latin language, enlarging and diversifying commerce, teaching the possible unity of national interests, led to the apprehension of a broader basis in comity which made the growth of interstate relations more rapid.[25]
(e) Chivalry. The code of chivalry and the respect for honor which it enjoined introduced a basis of equable dealing which on account of the international character of the orders of chivalry reacted upon state practice throughout Christian Europe.
(f) Commerce and Sea Laws. The expansion of commerce, especially maritime, emphasized the duties and rights of nations. The old Rhodian laws of commerce, which had in part been incorporated in and expanded by the Roman code during the days before the overthrow of the Empire, formed a basis for maritime intercourse. From the fall of the Empire to the Crusades commerce was attended with great dangers from pirates on the sea and from exactions in the port. The so-called Amalfitan Tables seem to have been the sea law of the latter part of the eleventh century. The much more detailed Consolato del Mare of doubtful origin between the twelfth and fourteenth centuries derived some of its principles from the eleventh-century code. The Consolato was recognized by maritime powers as generally binding, and made possible wide commercial intercourse. Many of its principles have stood to the present day, though touching such questions as the mutual rights of neutrals and belligerents on the sea in time of war.[26] As the Consolato formed the code of Southern Europe, the Laws of Oleron formed the maritime code for Western Europe, and were compiled the latter part of the twelfth century, whether by Richard I. or by his mother Queen Eleanor is a disputed question. These laws are based in large measure on the other existing systems. The Laws of Wisby, dating from about 1288, supplemented the Laws of Oleron, and formed the fundamental law of maritime courts of the Baltic nations.[27] The Hanseatic League in 1591[28] compiled a system of marine law, Jus Hanseaticum Maritimum, based on the codes of Western and Northern Europe. The maritime law of Europe was practically unchanged for nearly a hundred years, when systematized in 1673 under Louis XIV. Similar to the maritime codes are the "Customs of Amsterdam," the "Laws of Antwerp," and the "Guidon de la Mar."[29]
(g) Consulates. Closely connected with the development of maritime law during the latter part of the middle period was the establishment of the office of consul. The consuls, under the title of consules marinariorum et mercatorum, resident in foreign countries, assisted by advice and information the merchants of their own countries, and endeavored to secure to their countrymen such rights and privileges as possible. These seem to have been sent by Pisa early in the eleventh century, and were for some time mainly sent by the Mediterranean countries to the East.
(h) The discovery of America marked a new epoch in territorial and mercantile expansion, and introduced new problems among those handed down from an age of political chaos.
(i) Conclusion. The middle period, with all its inconsistencies in theory and practice, had nevertheless taught men some lessons. The world-empire of Rome showed a common political sovereignty by which the acts of remote territories might be regulated; the world-religion of the Church of the middle period added the idea of a common bond of humanity. Both of these conceptions imbued men's minds with the possibility of a unity, but a unity in which all other powers should be subordinate to a single power, and not a unity of several sovereign powers acting on established principles. The feudal system emphasized the territorial basis of sovereignty. The Crusades gave to the Christian peoples of Europe a knowledge and tolerance of each other which the honor of the code of chivalry made more beneficent, while the growth of the free cities opposed the dominance of classes feudal or religious. The fluctuations and uncertainties in theory and practice of international intercourse, both in peace and war, made men ready to hear the voice of Grotius (1583-1645), whose work marks the beginning of the modern period.
§ 12. Modern Period (1648-)
The modern period may be divided into three epochs for International Law: (a) from the Peace of Westphalia, 1648, to the Peace of Utrecht, 1713; (b) from the Peace of Utrecht, 1713, to the Congress of Vienna, 1815; (c) from the Congress of Vienna, 1815, to the present time.
(a) 1648-1713. It became evident at the termination of the Thirty Years' War in 1648 that the old doctrines of world-empire, whether of Pope or Emperor, could no longer be sustained. The provisions of the Peace of Westphalia, while not creating a code to govern international relations, did give legal recognition to the existence of such conditions as Grotius contemplated in "De Jure Belli ac Pacis," viz.: sovereign states, equal regardless of area and power. The decree of James I., in 1604, establishing a neutral zone by "a straight line drawn from one point to another about the realm of England," in which neither of the parties to the war between the United Provinces and Spain should carry on hostilities, formed a precedent in maritime jurisdiction, even though the decree was but imperfectly enforced. This early part of the modern period was especially fruitful in treatises and discussions upon the nature of international law, and upon what it ought to be, and also upon the law of the sea particularly Grotius's "Mare Liberum," 1609, Selden's "Mare Clausum," 1635, and Bynkershoek's "De Dominio Maris," 1702.[30] During this period the public law was diligently studied, the right of legation became generally recognized, French gradually took the place of Latin in international intercourse,[31] with a corresponding modern spirit in the practice, though the discussions were usually ponderous and abstract, the idea of the balance of power flourished and formed a subject of frequent controversy, the principle of intervention upon political grounds was propounded and acknowledged, and the opinions of the great publicists, such as Grotius, gained great weight and were widely studied. The general principles of neutral trade, including "free ships, free goods," were laid down, prize laws and provisions as to contraband were adopted, numerous treaties of commerce gave witness of the growth of international intercourse, and both men and states became somewhat more tolerant.
(b) 1713-1815. The Treaty of Utrecht (1713) contained recognition of many of the principles which had become fairly well accepted during the years since 1648. There are evidences of the growing influences of the New World upon the policy of the Old; the American fisheries question appears; the international regulations in regard to commerce are multiplied, and the central subject of the preamble is the subject of "the balance of power."[32] For many years the question of succession to the various seats of royal and princely power formed the chief subject of international discussion. During the eighteenth century the steady growth of England as a maritime power and the European complications over trans-Atlantic possessions brought new international issues. The basis of modern territorial acquisition was found in the Roman law of occupatio, and its laws of river boundaries were almost exactly followed.[33] From the Treaty of Aix-la-Chapelle (1748), in which former treaties were generally renewed, to 1815, the growth and observation of the principles of international law was spasmodic. By the Peace of Paris and by the Peace of Hubertsburg (1763), many questions of territorial jurisdiction were settled. England, now become the dominant power in North America, with greatly extended power in the East, impresses upon international practice adherence to actual precedent rather than to theoretically correct principles. At the same time in Central Europe the conditions were ripe for that violation of international justice, the partition of Poland in 1772, followed by the further partition in 1793 and 1795. The rights which the concert of nations was thought to hold sacred were the ones most ruthlessly violated by the neighboring powers. The American Revolution of 1776 and the French Revolution of 1789 introduced new principles. The "armed neutrality" of 1780,[34] while maintaining the principle "free ships, free goods," made impossible the converse, "enemy's ships, enemy's goods," which had been held. Both the American and French Revolution made evident the necessity of the development of the laws of neutrality hitherto greatly confused and disregarded.[35] During the French Revolution it seemed that to Great Britain alone could the states of Europe look for the practice of the principles of international law. After the French Revolution it was necessary to define just intervention that Europe might not be again convulsed. It became clear that the state was an entity and distinct from the person of its king. No longer could the king of France or of any European state say "L'État c'est moi." Even though personal selfishness of monarchs might pervade the Congress of Vienna, the spirit of nationality could not long be restrained. The period from 1713 to 1815 had tested the general principles propounded during the seventeenth century, and it was found necessary to expand their interpretation, while the growth of commerce and intercourse made necessary new laws of neutrality and new principles of comity, such as were in part forthcoming in the early days of the nineteenth century, as seen in the resistance to the right of search, the declaration against African slave trade, establishment of freedom of river navigation, improved regulations in regard to trade in time of war, neutralization of Switzerland, placing of protectorate over Ionian Islands, and the determination of precedence and dignities of the various diplomatic agents and the states which they represented. By the year 1815 the theory of the seventeenth century had been severely tested by the practice of the eighteenth century, and it remained for the nineteenth century to profit by the two centuries of modern political experience.
(c) 1815 to date. The Peace of Westphalia (1648), the Peace of Utrecht (1713), and the Treaty of Vienna (1815) are the three celebrated cases of combined action of modern European powers. The "balance of power" idea had gradually been supplemented by "the concert of the powers" idea, which would not merely maintain the relative status quo of "the balance," but might enter upon a positive policy of concerted action. The "Holy Alliance" of 1815, to promote "Justice, Christian Charity, and Peace,"[36] was first broken by its originators. There was a strong feeling that the principles of international law should be followed, however, and this, the "Declaration of the Five Cabinets," Nov. 15, 1818, distinctly avowed in "their invariable resolution, never to depart, either among themselves, or in their relations with other states, from the strictest observation of the principles of the Rights of Nations."[37] The attempt to extend the principle of intervention in favor of maintaining the various sovereigns on their thrones, and in suppression of internal revolutionary disturbances by foreign force was made in the "Circular of the Three Powers," Dec 8, 1820.[38] Under many forms intervention has been one of the great questions of the nineteenth century, and the growing proximity and multiplication of relations of states during the century has added many complications.[39] The Grecian War of Independence (1821-1829) brought the new principle of pacific blockade (1827), and at its conclusion the powers guaranteed the sovereignty of Greece. The subjects of right of search, foreign enlistment, Monroe Doctrine, freedom of commerce and navigation, expatriation, extradition, neutralized territory, ship canals, consular rights, neutral rights and duties, arbitration, reciprocity, mixed courts, international postage, weights and measures, trade-marks and copyright, rules of war, sub-marine cables, and sphere of influence, which have come to the front during the nineteenth century, indicate in a measure the subject-matter of international negotiation. Throughout the period since 1815 the tendency has been rather to regard what is the international practice.
§ 13. Writers
Among the writers upon subjects connected with international law before the days of Grotius the most prominent are Victoria (-1550?), Ayala (1548-1584), Suarez (1548-1617), and Gentilis (1551-1611). While in many respects their contributions to the science were valuable, the work of Grotius stands out preËminent among all the early writers.
Hugo Grotius (b. Delft, Apr. 10, 1583; d. Rostock, Aug. 28, 1645). Scholar; jurist; statesman; good family; precocious; prodigious learning in many branches; at fifteen with special embassy to France; at twenty historiographer to the United Provinces; at twenty-five advocate-general of the fisc of Holland and Zealand; married next year Mary van Riegesberg, a worthy help-meet; at thirty pensionary of city of Rotterdam; same year one of deputation to England to settle maritime disputes. Grotius took active part in religious disputes, on which account in 1619 he was sentenced to imprisonment for life and confiscation of his property. Two years later, through cleverness of his wife, he escaped to Paris. Here days of adversity and study. In 1625 "De Jure Belli ac Pacis" published; brought no profit but immediate and lasting fame. Disappointed in his hope to return to permanent residence in Holland; is appointed Swedish ambassador at French Court, 1635-1645. Declines further service in 1645. Retires, honored in all lands; shipwrecked; died at Rostock, Aug. 28, 1645.[40]
Grotius's "De Jure Belli ac Pacis" (1625). An attempt to bring into a systematic treatment those principles which have since become known as international law. Touches upon many other subjects; rich in quotations; broad philosophical basis gives it permanent value. Conditions in Europe at time of appearance of work gave it immediate and powerful influence in determining course of modern political history. Upon the foundation laid by Grotius the modern science has been largely built. Of course, many of the principles expounded by Grotius are no longer applicable, and many new principles, as the doctrine of neutrality, have gained recognition.
Zouch (1590-1660), the successor of Gentilis, as professor of Roman Law at Oxford, while a follower of Grotius in matter and method, deserves mention for his distinction between jus gentium and that law to which he gives the name jus inter gentes, in the French translation called Droit entre les Gens, later Droit International, and in the English, Law of Nations, and since the latter part of the eighteenth century when Bentham led the way, International Law.
Pufendorf (1632-1694) in his voluminous works in general follows Grotius.
Toward the end of the seventeenth century a school opposing the earlier writers arose. This school, headed by Rachel (1628-1691), assigned a stronger authority to the principles of international law, and gave more attention to usage, whether tacitly admitted or plainly expressed, and to compacts.
Bynkershoek (1673-1743), limiting his work to particular subjects in international law, gave to the eighteenth century several authoritative treatises which are justly regarded as of the highest worth. He especially defined the laws of maritime commerce between neutrals and belligerents (De Dominio Maris, 1702), gave an outline of ambassadorial rights and privileges (De Foro Legatorum, 1721), besides contributing to a much clearer understanding of the general subject of international law.
Wolfe (1679-1754) published in 1749 his "Jus Gentium." This bases international law on a sort of state universal, civitas maxima, made up of the states of the world in their capacity as voluntarily recognizing a natural law.
Vattel (1714-1767), an ardent admirer of Wolf, published in 1758 his "Law of Nations," which he based upon the work of Wolf. This work of Vattel was clear and logical and gained an immediate and wide influence, far surpassing that of his master.
Moser (1701-1786) brings into the science the positive method which Rachel had hinted at in his work a hundred years before. He narrows his view to the principles underlying the cases of his own day, and would build the science on recent precedents. The method thus introduced has strongly influenced succeeding writers.
G. F. de Martens (1756-1801) combines in a measure the method of Vattel with the positive method of Moser in his "PrÉcis du Droit des Gens Moderne de l'Europe," 1789. This treatise has been a recognized standard.
Many special and general works appeared in the latter years of the eighteenth and early years of the nineteenth century.
Wheaton (1785-1848), the foremost American writer on international law, published in 1836 his "Elements of International Law," which has long been recognized as a standard throughout the world.
Beside the great work of Wheaton justly stands Phillimore's "Commentaries upon International Law."
Many other works of highest merit have appeared during the latter half of the nineteenth century, such as those of Bluntschli, Travers Twiss, Calvo, Wharton, Pradier-FodÉrÉ, and of the eminent authority, the late William Edward Hall. There are also many living writers whose contributions are of greatest worth.[41]
CHAPTER IV
SOURCES
§ 14. Practice and Usage
If for a time international intercourse follows certain methods, these methods are regarded as binding in later intercourse, and departure from this procedure is held a violation of international right. That collection of customs known as "The Law Merchant" is an example of a source of this class. Of this it has been said, "Gradually, the usages of merchants hardened into a cosmopolitan law, often at positive variance with the principles of local law, but none the less acquiesced in for mercantile transactions, and enforced by tribunals of commanding eminence and world-wide reputation, such as the courts of the Hanseatic League and the Parloir aux Bourgeois at Paris."[42]
Sir W. Scott, in the case of the "Santa Cruz," 1798, said "Courts of Admiralty have a law and a usage on which they proceed, from habit and ancient practice."[43]
§ 15. Precedent and Decisions
The domestic courts of those states within the family of nations, may by their decisions furnish precedents which become the basis of international practice.
(a) Prize and Admiralty courts decisions form in themselves a large body of law. Jurisdiction in admiralty and maritime causes in the United States rests in the District Courts, the Circuit Courts, and the Supreme Court. The District Courts have original jurisdiction in civil causes of admiralty and concurrent jurisdiction with the Circuit and State Courts in suit of an alien, because of violation of international law or treaty of United States. The District Court also has full prize court powers. Appeals from prize courts decisions go directly to the Supreme Court for final judgment; appeals from admiralty decisions go to the Circuit Court for final judgment.[44] The prize courts of other powers vary in jurisdiction, nature, and procedure. British and American courts rely more particularly upon precedents, while the Continental courts follow more distinctly the general principles laid down in codes and text writers, and place less reliance upon previous interpretation of these principles as shown in court decisions.[45] Whatever the method of the prize court, its decision, if legally rendered, stands as valid in all states.[46]
(b) The decisions of domestic courts upon such matters as extradition,[47] diplomatic privileges, piracy, etc., tend to become a source of international law. In the United States the Supreme Court has original jurisdiction "in all cases affecting ambassadors, other public ministers, and consuls."[48]
(c) The decisions of courts of arbitration and other mixed courts are usually upon broad principles. Some of the principles involved may become established precedents, yet the tendency to render a decision, which by a compromise may be measurably acceptable to both parties, may lessen the value of the decision as a precedent. As arbitration is of necessity voluntary, there is generally a consensus upon certain points, even though the decision rendered may not become a precedent. The growth of the practice of arbitration of disputes is an indication of the general recognition of mutual confidence between states. The principles upon which the court of arbitration bases its decision, rather than the decision itself, furnish material valuable for international law.
§ 16. Treaties and State Papers
Treaties and state papers of whatever form[49] indicate the state of opinion, at a given time, in regard to the matters of which they speak. Since they are binding upon the parties to them, treaties may be regarded as evidence of what the states, bound by their terms, accept as law. When the same terms are generally accepted among nations, treaties become a valuable evidence of concrete facts of practice and proper sources of international law. The principles may be so well established by successive treaties as to need no further treaty specification. Treaties and state papers vary greatly in value as sources of international law, however.
(a) Treaties and state papers may lay down new rules or outline the operation of old rules. As instances of those laying down new rules may be taken the Clayton-Bulwer Treaty of April 19, 1850, the convention for the protection of Submarine Cables, March 14, 1884, the Geneva Convention of 1864; of those outlining and determining the operation of old rules, there are many instances, the most numerous in the treaties in regard to maritime affairs and consuls.
(b) Treaties and state papers may enunciate established rules as understood by the parties to the treaty. The Declaration of the Conference of London, Jan. 17, 1871, to which the major European states were parties, announces that the signatory powers "recognize that it is an essential principle of the Law of Nations that no Power can liberate itself from the engagements of a Treaty, nor modify the stipulations thereof, unless with the consent of the Contracting Powers by means of an amicable agreement."[50]
(c) Treaties and state papers may agree as to rules which shall be held as binding upon the parties to the treaty or paper. The Declaration of Paris, 1856, agreed as to certain principles and rules of maritime international law, which should be held as binding the signatory powers or those later agreeing to its provisions. This Declaration may be held as generally binding. The United States, by Proclamation of April 26, 1898, announced its adherence to the principles of the Declaration, and during the same year Spain acquiesced in its principles.
(d) Most treaties and state papers, however, deal with matters of interstate politics, and are not in any sense sources of international law. They are in most cases little more than interstate compacts.
§ 17. Text Writers
During the seventeenth and the first half of the eighteenth century, the writings of the great publicists were regarded as the highest source of authority upon matters now in the domain of international law. These writings not only laid down the principles which should govern cases similar to those which had arisen, but from the broad basis given the law of nations, deduced the principles for such cases as might arise. This latter method was especially common among the early writers, such as Victoria and Suarez in the sixteenth century. The philosophical school, from Grotius to the middle of the eighteenth century, continued to propound the principles which should govern in supposed cases, should they ever actually arise. Statesmen looked to these treatises as authoritative sources. The prolific Moser, in the middle of the eighteenth century, made the historical method more prominent by giving less attention to the natural law, and by founding his system on usage and treaties. Bynkershoek (1673-1763) had anticipated him in this method in special lines, but Moser extended the system and made it most ample. Succeeding writers mingled the two systems, inclining to the one or the other. In the early days of the modern period, the writers upon the law of nations, outlined the course which states should pursue in their relations to one another. In the later days of the modern period, the writers upon the law of nations, while sometimes discussing problems before they arise, in general attempt to expound the rules and principles which have entered already into interstate action. The works of the text writers, from Grotius to the present, must be regarded as sources of highest value.
§ 18. Diplomatic Papers
The diplomatic papers, as distinct from the state papers to which more than one state becomes a party, are simply papers issued by a state for the guidance of its own representatives in international intercourse. The papers are sometimes named state papers or included among the papers to which other states are parties,—in the United States, in the series known as "Diplomatic Correspondence, 1861-1868," and "Foreign Relations" since 1870; and in Great Britain in the "British and Foreign State Papers."
These papers, showing the opinions of various states from time to time upon certain subjects which may not come up for formal state action, afford a valuable source of information upon the attitude of states toward questions still formally unsettled. The simple expression to state agents in the way of instructions or information as to the position of the state on a given matter may, if continued and long accepted, give to the principle involved the force of international sanction. This was almost the case in the so-called Monroe Doctrine. In these papers may often be found an indication of the line which the principles of international law will subsequently follow and a general consensus by several states in diplomatic instructions may be considered strong evidence of what the law is on a given point.
