SPECIAL WORKS Abribat, Jean Marie. Le Detroit de Magellan. Paris, 1902. Ashburner, E. The Rhodian Sea Laws. Oxford, 1909. Bentwich, N. The Declaration of London. London, 1911. Bowles, T. G. Sea Law and Sea Power. London, 1910. Bridgman, R. L. First Book of World Law. Boston, 1911. Dedreux, R. Der Suez Kanal im Internationalen Rechte. Tübingen, 1913. Descamps, E. La Neutralité de la Belgique. Paris, 1902. Fish, C. R. American Diplomacy. New York, 1915. Glenn, E. F. International Law. St. Paul, 1895. Harris, N. W. Intervention and Colonization in Africa. New 1914. York, Hodges, H. G. Doctrine of Intervention. Princeton, 1915. Hunt, Gaillard. The Department of State. New Haven, 1914. Lawrence, T. J. War and Neutrality in the Far East. London, 1904. Levermore, Charles H. The Anglo-American Agreement of 1817 for Disarmament on the Great Lakes. World Peace Foundation. Boston, 1914. Morris, R. C. International Arbitration. New Haven, 1911. Orban, Pierre. Étude de Droit Fluvial International. 1896. Paris, Pitistéano, A. G. La Convention du Danube. Paris, 1914. Pyke, H. R. The Law of Contraband of War. Oxford, 1915. Sanges, C. P., and Norton, H. T. J. England's Guarantee to Belgium and Luxemburg. London, 1915. Stockton, C. H. United States Naval War Code. Washing ton, 1900. Van Dyne, F. Our Foreign Service. Rochester, 1909. THE ELEMENTS OF INTERNATIONAL LAW CHAPTER I THE NATURE AND SOURCES OF INTERNATIONAL LAW INTERNATIONAL law is a system formed of those principles and rules of action which are acknowledged by civilized states as controlling in their mutual relations; such a system presupposes a group of sovereign communities with a common legal consciousness touching the conduct of their mutual affairs: "It is that law," said Grotius, in his celebrated work, De Jure Belli et Pacis, "which obtains between peoples and their rulers, springing from nature itself or instituted by laws divine, or by custom and silent agreement." In this definition we find the sources of international law ascribed, on the one hand, to the law of nature or the eternal law of right dealing, and, on the other hand, to the more positive elements designated as custom; the definition marks Grotius as belonging to what may be called the modern eclectic school of thought touching international relations, the contrasted groups of writers being those who find their inspiration either in a supposed law of nature that is to say, a highly abstract system of rules derived from sources higher than any merely human institution-or, again, those who look to sources positive, customary, or conventional—that is, to definitely admitted rules of action derived from judicial decision of cases from usage, or from the views of writers deemed of classical authority, as well as from principles founded on international adjustments ranking as precedents of a permanent character. The Law Maritime. An important division of international law is the law maritime, a system which from earliest times has been accepted as governing traffic and warfare on the seas. To furnish a plan of regulation for the practical needs of water-borne commerce alike in war and peace, this law has ever sought to found itself on principles of justice and has thus exhibited at once a breadth of application and a uniformity allying it with law universal. The true scope of this branch of jurisprudence was outlined by the Supreme Court of the United States in the case of the Scotia, where a collision of a British steamer and an American vessel (the Berkshire) in mid-Atlantic rendered it necessary to determine the obligatory force of British and American sailing regulations which were also shown to be common to the majority of states . . . and thus clothed with a controlling force akin to the prescriptions of law universal: "No single nation," said the court, "can change the law of the sea. That law is of universal obligation, and no statute of one or two nations can create obligations for the world." 1 The sources and authority of maritime law also received elaborate attention in the Court of King's Bench as early as 1759 in the case of Luke vs. Lyde which arose during the Seven Years War, and involved the question of what freight should be allowed the master of a British ship sailing from St. John, Newfoundland, to Lisbon, captured by a French cruiser and subsequently recaptured by a British privateer and brought into Biddeford for adjudication on the question of salvage. The court held that the master 114 Wallace's Reports, 185, 187, should be allowed his freight in proportion to the length of the voyage actually accomplished when captured, regard being had to the estimated unaccomplished voyage - from the point of capture into Lisbon. One-half the ship's value having been paid as salvage on recapture, Lord Mansfield, in decreeing a fraction of seventeen-twenty-firsts of one-half the agreed freight (pro rata itineris) to the master in accord with principles drawn from the Rhodian laws, cited that ancient code and declared that by the later and not less-respected sea codes of the Middle Ages similar principles were affirmed to be settled maritime custom.1 A fragment of the ancient Rhodian law is preserved in Justinian's Digest (De lege Rhodia de jactu Dig. XIV, II), and a collection of similar enactments was published by Simon Scardius at Basle in 1561, and by Fabrot at Paris in 1647 as a part of his celebrated edition of the Basilica or Byzantine jurisprudence compiled in the ninth century. Chief among later collections are the "Rôles d'Oleron" or judgments of the Isle of Oleron at the mouth of the Charente fronting the Bay of Biscay; the "Table of Amalfi," of which we hear, but possess no definite witness of its content; the laws of Wisbuy on the Island of Gothland in the Baltic; the "Jus Hanseaticum Maritimum" composed by the German Hansa at Lubeck about 1614; the "Guidon de la Mer," of Breton origin, though unknown authorship. In 1681 there was composed the great French Ordonnance de la Marine, a monument to the reign of Louis XIV. and which has furnished permanent inspiration and material to maritime law. Nearly at the same time there appeared the extensive work of Roccus of Naples, and a century later that of Casaregis of Tuscany, whose notable book was contemporary with the commentary in French of Valin upon the marine ordinance of Louis. These sea codes of an early time, briefly noticed by Parsons in the first volume of his standard work on maritime law, have been collected by Cleirac, who published at Bordeaux in 1647 the volume alluded to by Lord Mansfield in Luke vs. Lyde, Us et coutumes de la mer. In 1833 Pierre Sebastian Boulay-Paty (1763-1830), a judge of the Imperial Court of Rennes in Brittany and professor of the commercial code at the Law Faculty of that city, published his celebrated work on maritime law, the first volume of which contains a commentary on the ancient sea codes; these were again collected in a still more elaborate commentary by Jean-Marie Pardessus (1772-1853), first professor of commercial law at the Law Faculty of Paris and a judge of the Court of Appeal of France (Cour de Cassation); his work entitled Collections des lois maritimes antérieures au XVIII. siècle (1828-1845) has become the standard work on the subject. The ancient Rhodian sea law has recently been edited in a most able manner by W. Ashburner (Oxford University Press, 1909). Again, the United States Supreme Court, giving judgment in the case of The Paquete Havana (175 U. S. 677), and declaring the immunity from capture of small fishingboats with no hostile aspect in their operations, took occasion to illustrate its decision from the early maritime authorities above noticed, and also reaffirmed the doctrine laid down by the Court of King's Bench in the case of Triquet vs. Bath (upholding the diplomatic immunity of the Bavarian embassy's secretary,' determined in 1764) that the common law recognizes international law as an element of its structure and will enforce it judicially where its bearing upon a litigated case is clearly shown. Said the court, reviewing a series of precedents, including the Act 7 Anne, ch. 12: "What was the rule of decision: the act of parliament or the law of nations? Lord Talbot declared a clear opinion that the law of nations, in its full extent, was part of the law of England. That the act of parliament 13 Burrow's Reports, 1478). |