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The English-speaking peoples, masters not alone of extended territory but also of a mighty commerce, the energy and enterprise of whose sons have made them the great Travellers and Colonizers of the world - have interests to safeguard in every quarter of it, and, therefore, in an especial manner it is important to them, that the Rules which govern the relations of States inter se should be well understood and should rest on the solid bases of convenience, of justice and of reason. One other consideration has prompted the selection of my subject. I knew it was one which could not fail, however imperfectly treated, to interest you. You regard with just pride the part which the Judges and writers of the United States have played in the development of International Law. Story, Kent, Marshall, Wheaton, Dana, Woolsey, Halleck and Wharton, amongst others, compare not unfavorably with the workers of any age, in this province of jurisprudence.
International Law, then, is my subject. The necessities of my position restrict me to, at best, a cursory and perfunctory treatment of it.
I propose briefly to consider what is International Law; its sources; the standard
the standard - the ethical standard - to which it ought to conform; the characteristics of its modern tendencies and developments, and then to add some (I think) needful
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words on the question, lately so much discussed, of International Arbitration.
I call the Rules which civilized nations have agreed shall bind them in their conduct inter se, by the Benthamite title, “ International Law.” And here, Mr. President, on the threshold of my subject I find an obstacle in my way. My right so to describe them is challenged. It is said by some that there is no International Law, that there is only a bundle, more or less confused, of rules to which nations more or less conform, but that International Law there is none. The late Sir James F. Stephen takes this view in his History of the Criminal Law of England, and in the celebrated “ Franconia" case (to which I shall hereafter have occasion to allude) the late Lord Coleridge speaks in the same sense.
Strictly speaking, International Law’is an inexact expression and it is apt to mislead if its inexactness is not kept in mind. Law implies a Lawgiver and a Tribunal capable of enforcing it and coercing its transgressors.
Indeed it may be said that with few exceptions the same note is sounded throughout the judgments in that case. These views, it will at once be seen, are based on the definition of Law by Austin in his “ Province of Jurisprudence determined,” namely, that a Law is the command of a superior who has coercive power to compel obedience and punish disobedience. But this definition is too narrow; it relies too much on force as the governing idea. If the development of Law is historically considered, it will be found to exclude that body of customary law which in early stages of Society precedes Law which assumes, definitely, the character of positive command coupled with punitive sanctions. But even in Societies in which the machinery exists for the making of Law in the Austinian sense, rules or customs grow up which are laws in every real sense of the word, as for example, the Law Merchant. Under later developments of arbitrary power Laws may be regarded as the command of a Superior with a coercive power in Austin's sense: Quod placuit principi legis vigorem habet. In stages later still, as government becomes more frankly democratic, resting broadly on the popular will, Laws bear less and less the character of commands imposed by a coercive authority, and acquire more and more the
character of customary law founded on consent. Savigny, indeed, says of all law, that it is first developed by usage and popular faith, then by Legislation and always by internal silently-operating powers, and not mainly by the arbitrary will of the Lawgiver.
I claim, then, that the aggregate of the Rules to which nations have agreed to conform in their conduct towards one another are properly to be designated “ International Law.”
The celebrated author of “ Ecclesiastical Polity," the " judicious” Hooker, speaking of the Austinians of his time, says:
They who are thus accustomed to speak apply the name of Law unto that only rule of working which superior authority imposeth, whereas we, somewhat more enlarging the sense thereof, term every kind of rule or canon whereby actions are framed a Law.” I think it cannot be doubted that this is nearer to the true and scientific meaning of Law.
What, then, is International Law?
I know no better definition of it than that it is the sum of the Rules or Usages which civilized states have agreed shall be binding upon them in their dealings with one another.
Is this accurate and exhaustive? Is there any a priori rule of right or of reason or of morality which, apart from and independent of the consent of nations, is part of the Law of Nations? Is there a Law which Nature teaches, and which, by its own force, forms & component part of the Law of Nations? Was Grotius wrong when to International Law he applied the test “ placuit-ne Gentibus” ?
These were points somewhat in controversy between my learned friends Mr. Phelps and Mr. Carter, and myself before the Paris Tribunal of Arbitration in 1893, and I have recently received from Mr. Carter a friendly invitation again to approach them this time in a judicial rather than in a forensic spirit. I have reconsidered the matter, and, after the best consideration which I can give to the subject, I stand by the proposition which in 1893 I sought to establish. That proposition was that International Law was neither more nor less than what civilized nations have agreed shall be binding on one another as International Law.
Appeals are made to the Law of Nature and the Law of Morals, sometimes as if they were the same things, sometimes as if they were different things, sometimes as if they were in themselves International Law, and sometimes as if they enshrined immutable principles which were to be deemed to be not only part of International Law, but, if I may so say, to have been pre-ordained. I do not stop to point out in detail how many different meanings have been given to these phrases — the Law of Nature and the Law of Morals. Hardly any two writers speak of them in the same sense. No doubt appeals to both are to be found scattered loosely here and there in the opinions of Continental writers,
Let us examine them.
Moralists tell us that for the individual man life is a struggle to overcome nature, and in early and, what we call natural or barbarous states of Society, the arbitrary rule of force and not of Abstract Right or Justice is the first to assert itself. In truth, the initial difficulty is to fix what is meant by the Law of Nature. Gaius speaks of it as being the same thing as the Jus Gentium of the Romans, which, I need not remind you, is not the same thing as Jus inter Gentes. Ulpian speaks of the Jus naturale as that in which men and animals agree. Grotius uses the term as equivalent to the Jus stricte dictum, to be completed, in the action of a good man or state by a higher morality, but suggesting the standard to which Law ought to conform. Pufendorf in effect treats his view of the rules of abstract propriety, resting merely on unauthorized speculations, as constituting International Law and acquiring no additional authority from the usage of nations; so that he cuts off much of what Grotius regards as Law. Ortolan, in his “ Diplomatie de la Mer," cites with approval the following incisive passage from Bentham, speaking of so-called natural rights springing from so-called natural law :
“ Natural right is often employed in a sense opposed to Law, as when it is said, for example, that Law cannot be opposed to Natural right, the word “right' is employed in a sense superior to Law, a right is recognized which attacks laws, upsets
and annuls it. In this sense, which is antagonistic to law, the word droit' is the greatest enemy of reason and the most terrible destroyer of governments.
• We cannot reason with fanatics armed with a natural right, which each one understands as he pleases, applies as it suits him, of which he will yield nothing, withdraw nothing, which is inflexible, at the same time that it is unintelligible, which is consecrated in his eyes like a dogma and which he cannot discard without a cry. Instead of examining laws by their results, instead of judging them to be good or bad, they consider them with regard to their relation to this so-called natural right. That is to say, they substitute for the reason of experience all the chimeras of their own imagination.”
Austin, also, in his work on Jurisprudence, already mentioned, and referring to Pufendorf and others of his school, says:
They have confounded positive international-morality or the rules which actually obtain amongst civilized nations in their mutual intercourse, with their own vague conceptions of international morality as it ought to be, with that indeterminate something which they call the law of nature. Professor von Martens of Gottingen is actually the first of the writers on the law of nations, who has seized this distinction with a firm grasp; the first who has distinguished the rules which ought to be received in the intercourse of nations, or, which would be received if they conformed to an assumed standard of whatever kind, from those which are so received, endeavored to collect from the practice of civilized communities what are the rules actually recognized and acted upon by them and gave to these rules the name of positive international law."
Finally Woolsey, speaking of this class of writers, says they commit the fault of failing to distinguish sufficiently between natural justice and the law of nations, of spinning the web of a system out of their own brain as if they were the Legislators of the world, and of neglecting to inform us what the World actually holds the Law to be by which nations regulate their conduct. So much for the law of Nature.
What are we to say of the appeal to the Law of Morality?