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these with each other, and with what is believed to be the true law, making changes here and there, and organizing the whole into a system. Codification, it is true, will not do away with all disagreements of co-ordinate courts, nor prevent and abolish all litigation or prosecutions. So long as the words of a language separately and collectively are susceptible of different renderings and applications, so long will judges disagree as to the meaning of the provisions of codes. The best code that can be made will possess defects, uncertainties, and inadequacies. We shall have litigation and prosecutions still. But the inquiry presenting itself to the law reformer and the legal scientist is not how shall all litigation, prosecutions and judicial dis.. agreements be stopped, nor how shall crime be entirely suppressed and punished, nor how shall suitors get justice without any trouble or expense ? but how shall these litigations, prosecutions, judicial disagreements, troubles and expenses be reduced to the minimum-how shall the difference between the written and the unwritten law be diminished, and the total social requirements be met? It is believed that codification is the chief way to accomplish this purpose. Piecemeal legislation may do something towards this ; but complete codification is essential to the accomplishment of complete results, and is essential to unity. In governments having a written constitution there should be in addition to this constitution, a political, civil, and criminal code, consisting of declarations of the executive, judicial and legislative functions, rules of substantive law, procedure and administration. Codes need occasional modifications, in order to conform to the progressive changes of society. In this respect, the object is to make the change correspond with the social changes, both in time and amount. Wherever the system of codification is thoroughly established, the modifications are wrought by the influences of society with sufficient rapidity.
The same principles which govern in the transformation
of the unwritten municipal law into positive law, are applicable in the transformation of the unwritten private international law into positive law. A code of private international law would be beneficial in securing uniformity of regulations to the citizens of different nations. A complete code of this law with a court to administer it has been established by the Khedive of Egypt. Tribunals for the administration of the unwritten law haye been established in Europe, and a tribunal of this character has been recommended by the President of the United States for that country. The prospects of a complete codification of private international law, which the principal commercial nations will recognize, are not such as to warrant the opinion of its immediate execution.
In respect to the codification of public international law some difficulties arise which are not found in private international law or in national law. In the latter cases the code can be enforced by competent governmental authority; in the former case a code cannot be so enforced. There is no physical authority residing in any governmental organization which is above and superior to the respective nations. It is true that there has been for ages a species of law existing among nations called the Jus Gentium, but this is now understood to have meant in early times simply the laws which are common to all nations, and not to have referred to the rules governing the intercourse of nations as such. There has also been a true public international law, but this has only been expressed in positive form by occasional treaties, and decrees of arbitrators. Public international law is, comparatively speaking, in its infancy. The legal scientist, in order to discover the true public international law, must refer principally to what may be called international sentiment. Although that would not be the sole test. No system of rules, however reasonable or ideally perfect, or apparently useful, will express the true international law if it does not express the international sentiment, which is a compound of international reason, will, emotion, and notion of utility. But even that may not be the true law; for there are certain forces at work in the environment, physical, commercial, military, industrial, certain antipathies and diversities of sentiment, which render the true and real public international law not representable even in terms of sentiment. The present state of international relations does not seem to admit of a very complete or specific code. All that can be accomplished is the partial codification of public international law-including only such points as give rise to the least differences among the nations—and the establishment of a court of arbitration to interpret and apply the code. This code should be at present nothing more than an enlarged treaty among as great a number of powers as can be induced to enter into it. This would, of course, require official instead of private action. The official mode of preparing the code seems to be preferable to the unofficial mode, inasmuch as in any event the final sanction of the code would have to proceed from the governments interested. It is true that publicists may do much in awakening the interest of the people and the governments in the matter of codification and arbitration. Eminent jurists, such as Bluntschli and Field, have done much in this way. Private persons may collectively discuss or compile a code, as the private international congresses in Europe have pro
posed to do. This may assist an official congress in arriving - at a better knowledge of the real public international law.
It is a mistake to suppose that the adoption of a code of public international law, or the establishment of a court of arbitration, or both, would have the effect of a complete suppression of warfare among the nations concerned. Even treaties are sometimes broken, and decrees of courts of arbitration would not always be obeyed. In the present state of international society, wars cannot be anything more than diminished—they cannot be abolished. Nevertheless, codification and arbitration are the necessary organs for the expression of the legal conditions of international society.
It is not designed to extend this outline of the science of law, in the present article. The new science of law will render the abstract theories of legal right, of contract, ownership and punishment for crimes of little more than historical value. It is well enough, perhaps, in a period when large numbers of facts cannot be obtained to depend upon pure reason for theories of causation and creation, of existence and relation. But this will not suffice after an extended and more complete knowledge of phenomena has been rendered possible by the methods of science. It has been the design of this article to indicate the scientific method in law. It has not been expedient to aitempt anything more than a general and rapid survey of the field, over which the careful student of legal science must go with a slower tread and more minute observation.
The future legologist must be prepared to depart from the beaten paths of his predecessors and enter the broad and almost undiscovered region of sociology. He must be versed in both physical and psychical science, in political economy, history and jurisprudence. These are the attainments necessary to success in the new science. The mental and moral qualifications will, no doubt, be present—the qualifications of patience, perseverance, a large faculty of generalization, and a mind quite unbiased, although perfectly familiar with pre-existing notions. The successful inauguration of a new science of law would be a difficult, magnificent, and important achievement. But nothing is so essential as a correct and adequate legal science, to the formation of excellent codes and tribunals of justice. Not until we have a more perfect science of law, a grander legology, can the law-giver invent an instrument of codification which, like an instrument for indicating the temperature, quality, and depth of the waters of the ocean, shall be dropped down into the ocean of humanity and there silently and surely register the wants, wishes and conditions of men in the forms of law.
A. P. SPRAGUE. I Troy, N.Y.
VI.—THE PUBLIC RIGHT OF NAVIGATION.
EWrights have been the subject of more constant I litigation than the public, or, as it is sometimes called, the common law right of navigation. The aid of the Courts has been invoked, at one time to settle Edisputes between individual members of that vague entity called “the public" respecting the use of this right, which requires the rare quality of reasonableness to guide its exercise ; at another time to reconcile the exercise of the right of navigation, using that phrase in its literal sense, by the navigating portion of the public, with the quiet enjoyment of the right of fishing by the fishing part of the public!; fat another time, to protect the public in the possession of their right from the encroachments of their proper protector, the Crown; and yet again, to prevent either the public right of navigation, or the private rights of riparian proprietors, being so used as to deprive the former of its fair and legitimate value, and the latter of their existence. But, although litigation has been plentiful, and the circumstances of the cases brought before the Courts infinitely varied, it is not easy to extract from the authorities any statement expressing with sufficient minuteness, on the one hand, or comprehensiveness on the other, what is the public right of navigation. The reason of this is probably to be found in the nature of the right in question. It does not readily yield itself to definition, being, in fact, not one right, but a collective name for several rights, distinct at least in point of user. “The sum of the "rights of individuals forming part of the public, put together, makes the public right."*
The public right of navigation, although the most important, is only one of the rights that may exist in and over a
* Per Willes in Kearns y. The Cordwainers' Co., 6 C.B. (N.S.), 388.