It cannot be affirmed that there is a universally accepted standard of morality. Then what is to be the standard? The standard of what nation? The standard of what nation and in what age?

Human society is progressive-progressive let us hope to a higher, a purer, a more unselfish ethical standard. The Mosaic Law enjoined the principle of an eye for an eye, a tooth for a tooth. The Christian law enjoins that we love our enemies and that we do good to those who hate us. But more. Nations although progressing, let us believe, in the sense which I have indicated, do not progress pari passu. One instance occurs to me pertinent to the subject in hand.

Take the case of Privateering. The United States is to-day the only great power which has not given its adhesion to the principle of the Declaration of Paris of 1856, for the abolition of Privateering. The other great nations of the earth have denounced Privateering as immoral and as the cover and the fruitful occasion of Piracy. I am not at all concerned to discuss in this connection whether the United States were right or were wrong. It would not be pertinent to the point; but it is just to add that the assenting Powers had not scrupled to resort to Privateering in past times, and also that the United States declared their willingness to abandon the practice if more complete immunity of private property in time of war were secured.

Nor do Nations, even where they are agreed on the inhumanity and immorality of given practices, straightway proceed to condemn them as international crimes. Take as an example of this the Slave Trade. It is not too much to say that the civilized Powers are abreast of one another in condemnation of the traffic in human beings as an unclean thing — abhorrent to all principles of humanity and morality, and yet they have not yet agreed to declare this offense against humanity and morality to be an offense against the Law of Nations. That it is not so has been affirmed by English and by American Judges alike. Speaking of morality in connection with International Law, Professor Westlake in his " Principles of International Law" acutely observes that while the rules by which nations have

agreed to regulate their conduct inter se, are alone properly to be considered International Law, these do not necessarily exhaust the ethical duties of States one to another, any more, indeed, than municipal law exhausts the ethical duties of man to man; and Dr. Whewell has remarked of jural laws in general that they are not (and perhaps it is not desirable that they should be) co-extensive with morality. He He says the adjective right belongs to the domain of morality; the substantive right to the domain of law.

The truth is that civilized men have at all times been apt to recognize the existence of a Law of Morality, more or less vague and undefined, depending upon no human authority and supported by no human external sanction other than the approval and disapproval of their fellow men, yet determining, largely, for all men and societies of men what is right and wrong in human conduct, and binding, as is sometimes said, in foro conscientiæ. This Law of Morality is sometimes treated as synonymous with the Natural Law, but sometimes the Natural Law is regarded as having a wider sphere, including the whole Law of Morality. It cannot be said either of International Law or of Municipal Law that they include the Moral Law nor accurately or strictly that they are included within it. It is a truism to say that Municipal Law and International Law ought not to offend against the Law of Morality. They may adopt and incorporate particular precepts of the Law of Morality; and on the other hand, undoubtedly, that may be forbidden by the Municipal or International Law, which in itself is in no way contrary to the Law of Morality or of Nature. But whilst the conception of the Moral Law or Law of Nature excludes all idea of dependence on human authority, it is of the essence of Municipal Law that its rules have been either enacted or in some way recognized as binding by the supreme authority of the State (whatever that authority may be), and so also is it of the essence of International Law that its rules must have been recognized as binding by the Nations constituting the community of civilized mankind.

We conclude then that, while the aim ought to be to raise high its ethical standard, International Law, as such, includes

only so much of the Law of Morals or of right reason or of natural law (whatever these phrases may cover) as nations have agreed to regard as International Law.

In fine, International Law is but the sum of those rules which civilized mankind have agreed to hold as binding in the mutual relations of States. We do not indeed find all those rules recorded in clear language- there is no International code. We look for them in the long records of customary action; in settled precedents; in Treaties affirming principles; in state documents; in declarations of nations in conclave - which draw to themselves the adhesion of other nations; in declarations of Text writers of authority generally accepted, and lastly, and with most precision, in the field which they cover, in the authoritative decisions of Prize Courts. I need hardly stop to point out the great work under the last head accomplished, amongst others, by Marshall and Story in these States, by Lord Stowell in England and by Portalis in France.

From these sources we get the evidence which determines whether or not a particular canon of conduct, or a particular principle, has or has not received the express or implied assent of nations. But International Law is not as the twelve Tables of ancient Rome. It is not a closed book. Mankind are not stationary. Gradual change and gradual growth of opinion are silently going on. Opinions, doctrines, usages, advocated by acute thinkers are making their way in the world of thought. They are not yet part of the Law of Nations. In truth, neither doctrines derived from what is called the Law of Nature (in any of its various meanings) nor philanthropic ideas, however just or humane, nor the opinions of Text writers, however eminent, nor the usages of individual states none of these, nor all

combined, constitute International Law.

If we depart from the solid ground I have indicated, we find ourselves amid the treacherous quicksands of metaphysical and ethical speculation; we are bewildered, particularly by the French writers in their love for un systeme, and perplexed by the obscure subtleties of writers like Hautefeuille with his Loi primitive and Loi secondaire. Indeed it may, in passing, be remarked that History records no case of a controversy between nations having

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been settled by abstract appeals to the Laws of Nature or of Morals.

But while maintaining this position, I agree with Woolsey when he says that if International Law were not made up of rules for which reasons could be given, satisfactory to man's intellectual and moral nature, it would not deserve the name of a Science. Happily those reasons can be given. Happily men and nations propose to themselves higher and still higher ethical standards. The ultimate aim in the actions of men and of communities ought, and I presume will be admitted, to be, to conform to the divine precept, "Do unto others as you would that others should do unto you.'

I have said that the rules of International Law are not to be traced with the comparative distinctness with which Municipal Law may be ascertained-although even this is not always easy. I would not have it, however, understood that I should to-day advocate the codification of International Law. The attempt has been made, as you know, by Field in this country and by Professor Bluntschli, of Heidelberg, and by some Italian jurists, but has made little way towards success. Indeed, Codification has a tendency to arrest progress. It has been so found, even where branches or heads of Municipal Law have been codified, and it will at once be seen how much less favorable a field for such an enterprise International Law presents, where so many questions are still indeterminate. After all it is to be remembered that jural law in its widest sense, is as old as Society itself; ubi societas ibi jus est; but International Law, as we know it, is a modern invention. It is in a state of growth and transition. To codify it would be to crystallize it; uncodified it is more flexible and more easily assimilates new rules. While agreeing therefore, that indeterminate points should be determined and that we should aim at raising the ethical standard, I do not think we have yet reached the point at which codification is practicable or if practicable would be a public good.

Let me give you an analogy. Amongst the most successful experiments in codification, in English communities, have been those in Anglo-India, particularly the Penal Code and the Codes of Criminal and Civil Procedure. Prompted by their

comparative success, Sir Roland Wilson urged the extension of the process of codification to those traditional unwritten native usages, or customary law, of Hindu or Mahomedan origin, still recognized in the government of India by Englishmen. But the wiser opinion of Indian experts was, that it was better not to persevere in the attempt. Many of these usages, by sheer force of contact with European life and habits of thought are falling into desuetude. The hand of change is at work upon them, and to codify them would be to stop the natural progress of disintegration.

As we are not to-day considering the history of International Law I shall say but a word as to its rise and then pass on to the consideration of its later developments and tendencies.

Like all Law, in the history of human societies, it begins with usage and custom, and unlike Municipal Law, it ends there. When, after the break-up of the Roman Empire the surface of Europe was partitioned and fell under the Rule of different sovereigns, the need was speedily felt for some guiding rule of International conduct. International Law was in a rudimentary stage; it spoke with ambiguous voice, it failed. to cover the whole ground of doubtful action. It needed not only an Interpreter of authority but one who should play at once the part of mediator, arbiter and Judge. The Christian religion has done much to soften and humanize the action of men and of nations and the Papal Head of Christendom became, after the disruption of the Roman Empire, the Interpreter and almost the embodiment of International Law. The Popes of the middle ages determined many a hot dispute between rival forces without loss of human life. Their decrees were widely accepted. Their action however, at the best, could not adequately supply the place of a Rule of conduct to which all might indifferently appeal. And when, later, with the Reformation movement, the time came when the Pope could not command recognition as the Religious Head of a united Christendom, the necessity of the time quickened men's brains and, under the fostering care of the jurists of many lands, there began to emerge a system which gave shape and form to ideas generally received and largely acted on by nations.