instance, investing Congress with the power to define and punish offenses against the law of nations.1 Origin of international law.-Professor Moore, in his Digest of International Law, says, "There is no precise time at which it may be said that the body of rules which regulate, under the title of international law, the intercourse of nations, came into being. As a science it assumed a definite form in the sixteenth and seventeenth centuries, in the works of the great philosophical jurists, of whom Grotius is the most illustrious. These works are distinguished by the blending of moral principles as discovered by reason and revelation with positive law and custom as found in the jurisprudence of nations and their practices. The first constituted what was called the law of nature (jus natura); the second the law of nations (jus gentium). Hence the title of some of the treatises the Law of Nature and of Nations. Of the positive element of the new science the Roman civil law was the chief source, since it was the foundation of the jurisprudence of the countries of continental Europe, whose laws and practices were chiefly consulted." The term "international law."-"It is thus apparent that from the beginning the science in question denoted something more than the positive legislation of independent states, and the term, international law,' which has in recent times so generally superseded the earlier titles, serves to emphasize this fact. It denotes a body of obligations which is, in a sense, independent of and superior to such legislation. The government of the United States has on various occasions announced the principle that international law, as a system, is binding upon nations, not merely as something to which they may be tacitly assumed to have agreed, but also as a fundamental 1 Const. of U. S., Sec. 8, Art. 1. condition of their admission to full and equal participation in the intercourse of civilized states." Authorities in international law." Though on many subjects the rules of international law are clear and precise, yet, as often happens with municipal law, the rule applicable to a particular case may be uncertain and difficult of ascertainment. In such cases an appeal is made to the authority of writers; to the provision of treaties disclosing a consensus of opinion; to the laws and decrees of individual states regulating international conduct; to the decisions of international tribunals, such as boards of arbitration; and to the judgments of prize courts, and of ordinary municipal courts, purporting to be declaratory of the law of nations." Maritime codes.-As a matter of especial interest to naval officers and sea-faring men are the various codes and collections of sea laws existing before the time of Grotius, which were factors in the early development of international law and of our present maritime municipal laws. Speaking of these, Oppenheim says, "From the eighth century the world trade, which had totally disappeared in consequence of the downfall of the Norman Empire and the destruction of the old civilization during the period of the migration of the peoples, began slowly to develop again. The sea trade specially flourished and fostered the growth of rules and customs of maritime law which were collected into codes and gained some kind of international recognition. The more important of these collections are the following: The Consolate del Mare,' a private collection made at Barcelona in Spain in the middle of the fourteenth century; "The Laws of Oleron,' a collection, made in the twelfth century, of decisions given by the maritime court of Oleron in France; the Rhodian Laws,' a very old collection of maritime laws 3 Oppenheim, Vol. 1, pp. 55-56. which partly date back as far as the eighth century; the 'Tabula Amalfitana,' the maritime laws of the town of Amalfi in Italy, which date, at latest, from the tenth century; the 'Leges Wisbuensis,' a collection of maritime laws of Wisby on the island of Gothland, in Sweden, dating from the fourteenth century." Codification of international law.-A movement towards bringing international law into a similar condition, in some respects, as national or municipal law is progressing by means of partial codifications of international law. It is true that these are fragmentary and varying as to definiteness in statement, but it is best that the progress should be in that manner. It allows more time for deliberation and amendment in the formative process, and bases codification upon international agreements, upon established uses and upon the general consensus of expert opinion. The uncodified law, like the lex non scripta or common law of municipal law, then remains so far as determined authoritative and in force. Recent progress in codification.-Codification of international law is a matter of recent times, and can be found in various individual efforts, national codes, agreements like the Declarations of Paris and St. Petersburg, and also the results of the Geneva Conventions for the amelioration of warfare, The Hague Conferences, and the International Naval Conference of London. Observance of international law.-Finally, as to the matter of the observance of international law by its subjectsthe civilized countries of the world-it must be stated here that international law cannot be restricted to any group of civilized nations, formed geographically or politically. It is not even limited to Christian communities, the moment a nation attains and exhibits sufficient civilization and independence she enters into the body of states to whom international law applies. Concerning the observance of this law by states, I can do no better than quote from Lawrence's Principles of International Law as to this matter.* "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 their conduct towards governments and peoples of other states. Even where a state adopts a self-sufficient theory of national life, and endeavors, 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 care and attention of the government. If, then, external affairs have from the necessity of the case to be dealt with by states which 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 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 toget er in a social bond somewhat analogous to the bond be Principles of International Law, T. J. Lawrence, pp. 3 and 4, 3d edn. tween 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." Navy regulations as to observance of the law of nations.It may be well here to call attention to the following articles of the Regulations for the Government of the Navy of the United States (1909) which read as follows: 208. All officers in their relation with foreign States, and with the governments or agents thereof, shall observe and obey the law of nations. 341. On occasions where injury to the United States or to citizens thereof is committed or threatened, in violation of the principles of international law or treaty rights, he (the commander-in-chief) shall consult with the diplomatic representative or consul of the United States, and take such steps as the gravity of the case demands, reporting immediately to the Secretary of the Navy all the facts. The responsibility for any action taken by a naval force, however, rests wholly upon the commanding officer thereof. Force of usage and custom.-In closing this introductory chapter it is well to emphasize the importance of custom and international usage as a ruling matter in and also a source of the determination of international law. When rules apparently sound conflict in findings, then usage, prevailing usage, determines the rules to be followed. |