Chapter VI: Marine Insurance (5)

In the north of Europe, again, out of the active commercial intercourse among the Baltic and North Sea communities grew rules of the sea in the same common interest. It was the Thirty Years' War, with its revolting cruelty, which brought out the contrast between the more humane practice of war as an art in Italy and the mere bludgeonry which prevailed in the brutal struggle which disgraced the first half of the 17th century. The brutality of the struggle turned thinkers' attention to the need of formulating rules for the protection in time of war of non-combatants and the innocent subjects of absolute sovereigns, the treatment of the sick and wounded, the prohibition of wanton pillage and the other horrors which shocked the awakening conscience of northern Europe. It was the starting-point of the age of text-books.

Grotius.

Pufendorf.

The first effective work, the one which was the first to influence sovereigns and statesmen, was Grotius's _De jure belli ac pacis_ (Paris, 1625), which practically exhausted the theoretical arguments in favour of the new subject. Nobody has in fact since brought to light any new conception of the foundations of international law. An exhaustive and masterly treatise having been published, no further subsequent treatise was necessary to show what all men were beginning to feel. He sublimated the feelings of his age, and having arrived at the pure substance, the work of proving the need of his subject was disposed of for all time. Pufendorf (1632-1697), who, in the sequence of effective text-writers, succeeded Grotius, endeavoured to base international law on an ethical basis accepted by all peoples without necessity for a common creed or standard of morals, but it is doubtful, whatever may have been the extent to which he stimulated the study of jurisprudence, whether he did much in advancing the practical development of the law of nations. His book _De jure naturae et gentium_ (1672), as its name indicates, based international law on what he called the law of nature, a subject which has much exercised the minds of jurists searching for an ethical basis for existing law.

Leibnitz.

The scientific mind of Leibnitz (1646-1716) revolted against this theoretical and doctrinaire tendency of Pufendorf and other writers, who were following with feeble tread in the giant footsteps of Grotius. He saw that the practice of nations was taking a course dictated by the current moral standards of civilized society, and that the philosophizing of the text-book writers was leading them away from that actual practice which they should use as data for their conclusions. Natural science, moreover, had taught him the risk of theorizing on imperfect data, and while writing a history of Brunswick it occurred to him that treaties and diplomatic documents generally were the substances and tests of the publicist's laboratory. His _codex juris gentium diplomaticus_ (1693-1700) gave a more precise direction to speculations on the subject.

Bynkershoek.

The next great writer of authority united all the qualities of a practical lawyer and jurist. This was Bynkershoek (1673-1743). He was the first writer on international law who dealt with public maritime law as a matter demanding special treatment and involving a set of principles not called into action in territorial warfare. A magistrate administering the law in a great commercial country, whose interests were on or across the high seas rather than within the narrow European limits of Holland, Bynkershoek, like Leibnitz, searched for his data in the actual practice of nations in their intercourse with one another. He applied his clear legally trained mind to deriving principles from practice instead of endeavouring to build up a practice on abstract principles. It was he who first generalized the different isolated usages which had grown up at different spots in northern Europe in the interest of maritime defence, and evolved from practice the principle that dominion seawards was limited to the extent to which it was possible to enforce it (cannon-shot range), a principle which not only created the legal institution of territorial waters, but has since been imported into other branches of International Law, and has indirectly influenced the suppression of fictitious blockades and more recently of fictitious occupations of territory.

C. de Wolff.

Vattel.

A contemporary of Bynkershoek was Christian de Wolff (1679-1754), a philosopher, mathematician, theologian, lawyer and disciple of Leibnitz. Wolff's great work on the _Institutions of the Law of Nature and Nations_ is a learned and accurate treatise drawn from all the well-known sources of knowledge, and, just as Grotius based his demonstrations on the then imperfect knowledge of public events of his time, Wolff based his on the more accurate sources of information which had grown up under the influence of Leibnitz, and created a connected system out of the scattered fragments available. But his book was written in Latin at a period when scholarship had declined, and its influence was only felt after Vattel (1714-1767) wrote his _Droit des gens, ou principes de la loi naturelle appliquees a la conduite et aux affaires des nations et des souverains_ (1758). His book had all the charm, although Vattel was a Neufchatelois, of the French writers of his time, and he it was who popularized the study of International Law. His book was based chiefly on the work of Wolff, but in it he gave what was best amongst his predecessors without attempting to add anything original of his own. It became the handbook of statesmen and jurists, and has never ceased to be quoted by them down to the present day.

But the opinions of jurists in International Law can have little more than the value of criticism and co-ordination. They have seldom served to make law, though they have the weight of all statements made by those who have made a special study of any branch of law, as to what they had gathered to be the existing practice at the time when they wrote, or as to the trend which they showed that practice might be taking. Great lawyers and writers like those we have mentioned, and such as Lord Mansfield, Sir William Scott, Chief-Justice Marshall and others, have done the work of classifying facts, deducing conclusions from them and connecting rules with psychological and ethical motives, and have thus sent a current of higher intelligence through the subject which has raised it to its present methodical form. Still International Law remained a wide field for controversy. Authors were agreed on general principles, but when these general principles were applied in practice, the shortcomings of unwritten usage often caused as much difficulty as that which the appeal to principles was intended to overcome.

Hague and London Conferences.

What may be called the first enactment of rules of International Law was the Declaration of Paris of 1856, but the great work of codification, or rather of reducing into writing the rules which had been floating as an unwritten law in the conscience of Europe, was undertaken by the Hague Conferences, which may be said to be and to have created an entirely new factor in the domain of International Law. Two of the conventions adopted in 1899 completed work which had already been commenced long before, viz. those on the usages of war and on the adaptation of the Geneva Convention to naval war. The third established methods for the pacific settlement of international difficulties, including the formation of the Hague Court of Arbitration. Recourse to the latter was purely optional, but the other two conventions have been absorbed into the national law of the ratifying countries, and thus have also the domestic sanction states give to their own laws. The work of the Conference of 1907 was of a much wider and more exhaustive character than that of 1899. It comprised, besides revised conventions on the matters dealt with in 1899, new Conventions on the following subjects: Opening of hostilities; Position in naval war of enemy's merchant ships at beginning of hostilities; Conversion of merchant vessels into warships; Rights and duties of neutral states in naval war; The laying of automatic submarine contact mines; The bombardment of undefended places by naval forces; Treatment of fishing vessels, postal correspondence and capture generally in maritime war; and Recovery by force of contract debts. It also adopted a convention for the creation of an International Prize Court of Appeal, which led to the calling of a fresh Conference on Prize Law. This conference sat in London from December 4, 1908, to February 26, 1909, and was confined to representatives of the following countries: Great Britain, France, Germany, United States of America, Italy, Austria-Hungary, Russia, Japan, Holland and Spain. It adopted a series of rules on naval warfare relating to Blockade in time of war; Contraband of war; Unneutral service; Destruction of neutral prizes; Transfer to neutral flag; Enemy character; Convoy; and Resistance to search and Compensation.

The revolution effected in the relations of states by the Hague and London Conferences, however, is not confined to the reduction into writing of more or less vague usages nor to the elaboration of details which no usage can possibly determine. Until a machinery was provided for the reform of the law it was futile to speculate on the advantages or disadvantages of any rule admitted by the majority of civilized nations. The territorial waters 3 m. limit, for instance, had its origin in the distance seawards of cannon-range in a past period. Its almost universal recognition only came long after the range of coast-guns had far exceeded this distance. This superannuated rule has now no legal basis at all except the so-called "common consent of nations," a boon no doubt which outweighs any consideration of absolute fitness still unrecognized, but of which the learned Barbeyrac truly said,[14] "Ce commun consentement des peuples que l'on suppose avoir force de loi est une chose qu'on ne prouvera jamais." The institution of the Hague Conferences has now provided a method of obtaining the consent of nations, not only to existing rules, but to their reform and to the introduction of new rules. It is now an understanding among the states of the world, that these conferences shall be held periodically. It is, of course, possible for one great state to hold aloof and thus wreck the chances of universal agreement, but even then we have the power of the majority as against that of the minority. A case actually arose in a recent war between non-signatories of the declaration of Paris of 1856. Neither the United States nor Spain was a party to that declaration, yet neither ventured to disregard it.

The chief source of International Law will, therefore, in all probability for the future be that "Parliament of mankind," the Hague Conferences. The Hague Court and its adjunct in time of war, the proposed International Prize Court of Appeal, will form the Judicature applying and construing the enactments of the Conferences acting as a sort of international Legislature.

Standard of right conduct.

_Fundamental Principles._--Underlying the details of both the new International Legislature and the new International Judicature are certain principles which may some day have to be officially defined. These principles have necessarily fluctuated with the standard of morals of each period. With the contemporary development of the public conscience, they are undergoing changes and a betterment which it is not desirable to check by yet nailing them up as immutable articles of faith. Till quite recently it was usual to speak of the common standard of right conduct prevailing throughout the Christian world, a standard to which responsible statesmen tried to adjust their direction of the affairs of state. The admission of Japan into the councils of the great powers has introduced a non-Christian element whose standard of conduct was not identical with nor based upon Christian morals. Turkey, though admitted in 1856 to European Councils, remained rather the occasion of their deliberations than a deliberating party. Her new position as a constitutional state, with a code of morals at any rate in some essentials distinct from that of Christian peoples, will add a further new non-Christian element into the moral foundations of international conduct. The influence of western Europe, however, in both Japan and Turkey, has hitherto in all external development been paramount. Japan, after examining all the existing systems, has even adopted the best she found in Western morals, and in her schools inculcates Christian ethics as a subject _per se_ without reference to divine revelation or authority. Turkey too has the advantage of possessing a code of morals which produces so high a standard of right conduct in private life that very little in the way of moral lessons will have to be learned by the Ottomans from Western civilization. As regards practice, it is unreasonable to expect that the high estimate of the moral standard of west European civilization, which is cherished by those who profess its principles, should be accepted by other peoples with unqualified assent. Are not the nations of western Europe still vaguely influenced by the instincts of their conquering ancestors, and by the traditions of--

"... the good old rule,
... The simple plan,
That they should take who have the power
And they should keep who can"?

There is nothing essentially different between many recent wars and military enterprises undertaken by Western nations against heathen peoples, and wars and conquering enterprises undertaken by the Northmen of a thousand years ago. In his _Northern Antiquities_ Mallet[15] describes the primitive feeling of the Northmen in the following passages:--

"The rules of justice, far from checking their prejudices, had been
themselves warped and adapted to their bias. It is no exaggeration to
say that all the Teutonic nations entertained opinions on this subject
quite opposite to the theory of our times. They looked upon war as a
real act of justice, and esteemed it an incontestable title over the
weak, a visible mark that God had intended to subject them to the
strong. They had no doubt but the intentions of this divinity had been
to establish the same dependence among men which there is among
animals, and setting out from the principle of the inequality of men,
as our modern civilians do, from that of their equality, they inferred
thence that the weak had no right to what they could not defend. This
maxim which formed the basis of the law of Nations among the ancient
inhabitants of Europe being dictated by their most darling passion, we
cannot wonder that they should so steadily act up to it in practice.
And, which after all is worst, to act and think as they did, or, like
the moderns, with better principles, to act as ill? As to the ancient
nations, we attribute nothing to them here but what is justified to
them by a thousand facts. They adopted the above maxim in all its
rigour and gave the name of Divine Judgment not only to the Judiciary
Combat, but to conflicts and battles of all sorts: victory being in
their opinion the only certain mark by which Providence enables us to
distinguish those which it has appointed to command others."

What is a civilized state?

The very notion of the "right of conquest," and that the victorious are entitled to an indemnity without reference to any question of right and wrong or of justice and injustice, shows that there are principles in actual practice which lie outside and have no analogy in the principles of private law. In the partition of Africa native states have been treated as non-existent except as local bodies. They have been annexed to European states without reference to their will or consent. Treaties have indeed been made with them, but they have rather been regarded as evidence of prior occupation than as involving any question of native right. The test in the distinction between civilized and uncivilized states which is regarded as warranting exclusion from enjoyment of the right to consideration as independent states, and admission to the community of the civilized world, is in practice the possession of a regular government sufficient to ensure to Europeans who settle among them safety of life and property. Every country, in principle, possessing such a government has prima facie the rank of a state and is entitled to treatment as a civilized community. Treaties made with it for the purpose of extra-territorial jurisdiction are intended merely to take into account a difference of judicial institutions but are not supposed to detract otherwise from the possession of such equality and independence. This principle has no analogy in private morals, and has been, slight as it is, more honoured in the breach than the observance. If indifference to native right has provoked reaction, it has been on the part rather of philanthropists than of statesmen. Their movement for the protection of African aborigines has, however, resulted in at least one great international charter for the prevention of the further degradation of African aborigines, viz. the General Act of Brussels of 1885. A vigorous outcry has also been raised against the methods of the government of the Congo State. But the agitation ought not to be confined to this part of Central Africa. Other governments are also in fault. In fact, the contact of the European with Central Africa has, throughout, with few exceptions, been one of barbarous practice quite inconsistent with the principles which Christian missionaries have been sent to teach the African native.

In the case of European enterprise in Asia, the "good old rule" has had still less justification. The action taken for the repression of the Boxer movement in China, like previous European incursions, had no essential characteristic distinguishing it from the expeditions of the Northmen described by Mallet in the above-quoted passage. The Japanese took part in the "Boxer" expedition, and the example of respect for native right and of orderly self-restraint they set has been universally acknowledged. But the lesson is one of greater significance than one of comparative ethics. The rise of the power of Japan and her obvious determination to constitute herself the champion of the races of eastern Asia has widened the scope of International Law, and we may now regard China as henceforth under the protection of the same principles as European states.

The three chief principles of interstate intercourse, those, in fact, on which International Law is based are:--

1. Recognition of each other's existence and integrity as states.

2. Recognition of each other's independence.

3. Recognition of equality, one with another, of all independent
states.

Chief principles.

As regards the first oL these principles see STATE. From the principle of independence it follows that every state has a right to change its form of government and to enjoy the free exercise oL its internal energies. This is subject only to the limitation that in the exercise of this right other states or their subjects shall not be molested or otherwise suffer. The equality of all independent states entitles them to respect by other states of all the forms of ceremonial and to the same treatment by others, where their interests are identical, whether they are strong or weak. This principle has often been violated, but it is, nevertheless, acknowledged wherever possible, as in diplomatic conferences relating to all matters of an economic, hygienic, industrial or social character. Even at the Conference of Algeciras, though the powers immediately concerned from a political point of view were only Great Britain, France, Germany and Spain, the following were also represented as having economic interests in Morocco, Austria-Hungary, Italy, Russia, Belgium, Holland, Portugal and Sweden.

High sea.

Ships on the high sea being regarded as detached portions of the national territory, there is also the derived principle of the freedom of the high sea, of the independence and equality upon it of the ships of all nations, subject only to due respect being paid to the independence and equality of all others and to such conventional restrictions as states may impose upon themselves (see TERRITORIAL WATERS). This principle is re-enunciated in the preamble to the Convention of 1907 on the laying of automatic submarine contact mines (see PEACE CONFERENCES).

The right to arbitration.

The Hague Conventions are based on these principles, to which there is a tendency to add another, viz. the right to arbitration in certain cases. This principle is set out more or less tentatively, it is true, but it is being completed by separate treaties of compulsory arbitration in connexion with the cases referred to. It is enunciated in the following article of the Convention of 1907 for the pacific settlement of International disputes:--

"In questions of a legal nature, and especially in the interpretation
or application of International Conventions, arbitration is recognized
by the contracting powers as the most effective, and, at the same
time, the most equitable means of arranging disputes which diplomacy
has failed to settle. Consequently, it is desirable that, in disputes
regarding the above-mentioned questions, the contracting powers
should, if need be, have recourse to arbitration, in so far as
circumstances permit" (Art. 28).

The principle of arbitration has also been adopted in reference to the recovery of contract debts under the following article of the "Convention respecting the limitation of the employment of force for the recovery of contract debts":--

"The contracting powers agree not to have recourse to armed force for
the recovery of contract debts claimed from the government of one
country by the government of another country as being due to its
subjects or citizens. This undertaking is, however, not applicable
when the debtor state refuses or neglects to reply to an offer of
arbitration, or, after accepting the offer, renders the settlement of
the _Compromis_ impossible, or, after the arbitration, fails to comply
with the award" (Art. 1).

The codification of International Law itself, begun at the Hague and London Conferences, is an admission of the binding character of the primary principles set out above.

Restriction of effect of fictions.

One of the chief tendencies of contemporary reform is also to restrict the effect of fictions and reduce rights to the limits of their practical application. Between two alternatives, the one to assert rights which cannot possibly be maintained by force such as claims to dominion over portions of the high sea (see HIGH SEA, TERRITORIAL WATERS), "paper blockades" (see BLOCKADE) and fictitious occupations of territory (see OCCUPATION), and the other to require actual physical assertion, a medium course is growing up, viz. that of recognizing potential assertion, that is assertion limited to physical possibilities.[16] With the aid of the Institute oL International Law, the International Law Association and other reforming agencies (see PEACE), expert opinion in these matters is becoming homogeneous throughout the civilized world, and the ground is being prepared for a clearer understanding of these fundamental principles by the statesmen and state officials who have to apply them in practice.

BIBLIOGRAPHY.--The following are works on international law, diplomacy
and treaty relations, from the beginning of the 19th century until
1910. Many of the older authors have been omitted to permit the
inclusion of more recent writers.

Alcorta, _Tratado de derecho internacional_ (Buenos Aires, 1878); D.
Anzilotti, _Teoria generale della responsabilita dello Stato nel
diritto internazionale_ (Florence, 1902); Arendt, _Le Droit public et
la neutralite de la Belgique_ (Brussels, 1845); Nagao Ariga, _La
Guerre russo-japonaise, au point de vue continental et le droit
international_ (Paris, 1908), _La Guerre sino-japonaise au point de
vue du droit international_ (Paris, 1896); Sir Sherston Baker, _First
Steps in International Law_ (London, 1899); Barboux, _Jurisprudence du
conseil des prises pendant la guerre franco-allemande_ (1872); Sir T.
Barclay, _Problems of International Practice and Diplomacy_ (London,
1907); T. Baty, _International Law_ (London, 1909); Bello, _Principios
de derecho internacional_, 2nd ed. by Silva (Madrid, 1884); Norman
Bentwich, _The Law of Private Property in War with a Chapter on
Conquest_ (London, 1907); Bergbohm, _Staats-Vertrage und-Gesetze als
Quellen des Volkerrechts_ (Leipzig, 1877); T. M. Bernard, _Four
Lectures on Subjects connected with Diplomacy_ (London, 1868);
Bluntschli, _Das moderne Volkerrecht der civilisirten Staaten als
Rechtsbuch dargestellt_ (Nordlingen, 1868), trans. into French by
Lardy (_Le Droit international codifie_) (Paris, 2nd ed., 1874), _Die
Bedeutung und die Fortschritte des modernen Volkerrechts_ (2nd ed.,
Berlin, 1873); De Boeck, _Le Droit de la propriete ennemie privee sous
pavillon ennemi_ (Paris, 1882); Henri Bonfils, _Manuel de droit
international public_ (1894, 4th ed., by Fauchille, 1904); Percy
Bordwell, _The Law of War between Belligerents--a History and
Commentary_ (Chicago, 1908); Bornemann, _Forelaesninger over den
positive folkeret_ (Copenhagen, 1866); Brusa, _Del modierno diritto
internazionale pubblico_ (Florence, 1876); De Burgh, _Elements of
Maritime International Law_ (London, 1868); Aug. von Bulmerincq,
_Praxis, Theorie und Codification des Volkerrechts_ (Leipzig, 1874),
_Das Volkerrecht_ (1887); Montagu Burrows, _History of the Foreign
Policy of Great Britain_ (London, 1897); Charles Henry Butler, _The
Treaty-making Power of the United States_ (2 vols., New York, 1902);
Carlos Calvo, _Le Droit international_ (5th ed., 6 vols., Paris,
1896); Cauchy, _Le Droit maritime international considere dans ses
origines et ses rapports avec les progres de la civilisation_ (2
vols., Paris, 1862), _Du respect de la propriete privee dans la guerre
maritime_ (Paris, 1866); Carnazza-Amari, _Trattato di diritto
internazionale de pace_ (2 vols., 1867-1875); Pitt Cobbett, _Cases and
Opinions on International Law and various points of English Law
connected therewith_ (London, 1st ed. 1885, 2nd ed. 1892, 3rd ed.
1909) (part I, "Peace"); Miguel Cruchaga, _Nociones de derecho
internacional_ (1899, 2nd ed. 1902); Cogordan, _La Nationalite au
point de vue des rapports internationaux_ (Paris, 1879); de Courcy,
_Reforme internationale du droit maritime_ (Paris, 1863); R. T. Crane,
_State in Constitutional and International Law_ (1907); Creasy, _First
Platform of International Law_ (London, 1876); G. B. Davis, _Outlines
of International Law, with an Account of its origin and sources, and
of its historical development_ (New York, 1887); _Elements of
International Law, with an account of its origin, sources and
historical development_ (new and revised edition, New York and London,
1900); de Clercq, _Recueil des traites, conventions et actes
diplomatiques conclus par la France avec les puissances etrangeres,
publies sous les auspices du min. des aff. etrangeres_ (Paris, 21
vols.); Descamps, _L'Evolution de la neutralite en droit
international_ (Brussels, 1898); F. Despagnet, _Cours de droit
international public_ (2nd ed., Paris, 1899), _La Diplomatie de la
Troisieme Republique et le droit des gens_ (Paris, 1904); Professor
Giulio Diena, _Principi di diritto internazionale_ (Naples, 1908);
Dufraisse, _Histoire du droit de guerre et de paix_ (Paris, 1867);
Jacques Dumas, _Les Sanctions de l'arbitrage international_ (Paris,
1905); E. Duplessix, _La Loi des nations, projet de code de droit
international public_ (Paris, 1906); _L'Organisation internationale_
(Paris, 1909); Charles Dupuis, _Les Tarifs douaniers et les traites de
commerce_ (Paris, 1895); _Le Principe d'equilibre et le concert
europeen de la paix de Westphalie a l'acte d'Algesiras_ (Paris, 1909);
Eden, _Law of Nature and of Nations, Policy of Europe_ (London, 1823);
Ed. Engelhardt. _Du regime conventionnel des fleuves internationaux_
(Paris, 1879); Paul Errera, _Das Staatsrecht des Konigsreichs Belgien_
(Tubingen, 1909); T. H. S. Escott, _The Story of British Diplomacy;
Its Makers and Movements_ (London, 1908); Fauchille, _La Diplomatie
francaise et la ligue des neutres de 1780_ (1776-1783) (Paris, 1893);
_Du blocus maritime_ (Paris, 1882); Ferguson, _A Manual of
International Law_ (2 vols., London, 1884); David Dudley Field,
_Outlines of an International Code_ (New York and London, 2nd ed.,
1876); Fiore, _Trattado di diritto internazionale pubblico_ (3rd ed.,
Turin, 1888), _Nouveau Droit international public_ (3 vols., Paris,
1885); _Le Droit international codifie et sa sanction
juridique--traduit de l'italien par A. Chretien_ (Paris, 1889);
Funck-Brentano et Sorel, _Precis du droit des gens_ (Paris, 1877, new
ed. 1894); Fusinato, _Il Principio della scuola italiana nel diritto
internazional pubblico_ (Macerata, 1884); Francois Gairal, _Le
Protectorat international_ (Paris, 1896); E. M. Gallaudet,
_International Law_ (New York, 1886); Guillaume de Garden, _Histoire
generale des traites de paix, et autres transactions principales,
entre toutes les puissances de l'Europe depuis la paix de Westphalie_
(14 vols., Paris, 1848-1859); Gareis, _Institutionen des Volkerrechts_
(1888, 2nd ed., 1901); L. Gessner, _Zur Reform des Kriegseerechts_
(Berlin, 1875), _Le Droit des neutres sur mer_ (2nd ed., Berlin,
1876), Guelle, _Droit international. La guerre continentale et les
personnes_ (Paris, 1879); Gueronniere, _Le Droit public de l'Europe
moderne_ (Paris, 1876); Guesalaga, _Derecho diplomatico y consular_
(Buenos Aires, 1900); Hagerup, "La Neutralite permanente" (_Revue
generale du droit international public_) (Paris, 1905); W. E. Hall, _A
Treatise on International Law_ (6th ed., edited by J. B. Atlay,
Oxford, 1909); _Foreign Powers and Jurisdiction of the British Crown_
(London, 1894); H. W. Halleck, _International Law_ (Philadelphia,
1866, edit. by Sir Sherston Baker, 4th ed., 2 vols., London 1908); A.
B. Hart, _Foundations of American Foreign Policy_ (New York, 1901);
Hartmann, _Institutionen des praktischen Volkerrechts in
Friedenszeiten_ (1887); L. B. Hautefeuille, _Quelques questions de
droit international maritime a propos de la guerre d'Amerique_
(Leipzig and Paris, 1861); _Droits et devoirs des nations neutres_ (3
vols., 3rd ed., Paris, 1868); _Questions de droit maritime
international_ (Paris, 1868); _Histoire des origines, des progres et
des variations du droit maritime international_ (Paris, 1858, 2nd ed.
1869); Heffter, _Das europaische Volkerrecht der Gegenwart_ (Berlin,
1855, trans. into French by Bergson, _Le Droit international de
l'Europe_, 4th ed., enlarged and annotated by Geffcken, Berlin and
Paris, 1883); Amos E. Hershey, _The International Law and Diplomacy of
the Russo-Japanese War_ (New York, 1906); Hertslet's _Commercial
Treaties_ (24 vols., London, 1840-1907); Sir Edward Hertslet, _Map of
Europe by Treaty, showing the territorial changes since the general
Peace of 1814-1891_ (4 vols., London, 1875-1891); _Map of Africa by
Treaty (1778-1895)_ (3 vols., London, 1896), Index to British and
Foreign State Papers, vols. 1 to 63 (1879); A. Pearce Higgins, _The
Hague Peace Conferences and other International Conferences concerning
the Laws and Usages of War_ (Cambridge, 1909); Historicus (Sir William
Harcourt), _Letters on some Questions of International Law_ (1863);
Albert E. Hogan, _Pacific Blockade_; T. E. Holland, _The Elements of
Jurisprudence_ (London, 1880, 10th ed., Oxford, 1906), _Studies in
International Law_ (Oxford, 1898), _The Laws of War on Land_ (Oxford,
1908), _Letters to The Times upon War and Neutrality_ (1881-1909) with
some commentary (London, 1909), _British Admiralty Manual of the Law
of Prize_ (1888); G. F. W. Holls, _The Peace Conference at The Hague_
(New York, 1900); Holtzendorff, _Handbuch des Volkerrechts_ (4 vols.,
Hamburg, 1885-1889); J. Hosack, _On the Rise and Growth of the Law of
Nations from the earliest Times to the Treaty of Utrecht_ (London,
1882); Huber, _Die Staaten-Succession, volkerrechtliche und
staatsrechtliche Praxis im 19. Jahrhundert_ (Leipzig, 1898);
International American Conference, _Plan of Arbitration for the
settlement of disputes between the American Republics, Report and
Recommendations_ (Washington, 1890); International American
Conference, _Report and Recommendations concerning a Uniform Code of
International Law_ (Washington, 1890); Joseph Imbart Latour, _La Mer
territoriale_ (Paris, 1889); Atherley Jones, _Commerce in War_
(London, 1907); Kaltenborn, _Critik des Volkerrechts_ (Leipzig, 1847),
_Zur Geschichte des Natur- und Volkerrechts_ (Leipzig, 1848); L.
Kamarowsky, _Le Tribunal international_ (trans. into French by Serge
de Westman, Paris, 1887); Wilhelm Kaufmann, _The Egyptian State Debt
and its Relation to International Law_ (London, 1892); _Die
Rechtskraft des internationalen Rechtes_ (Stuttgart, 1899); Kennedy,
_Influence of Christianity on International Law_ (Cambridge, 1856);
James Kent, _Commentary on International Law_ (rev. with notes and
cases by J. T. Abdy, 2nd ed. rev., London, 1877); Kleen, _De la
contrebande de guerre_ (Paris, 1893), _Lois et usages de la
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FOOTNOTES:

[1] Introduction to the _Principles of Morals and Legislation_
(Clarendon Press edition of 1879).

[2] _The Times_, July 26, 1887.

[3] _R._ v. _Keyn_, 2, Ex.D. 63.

[4] Address at Saratoga Springs, N.Y., 1896 (_Law Quarterly Review_,
October 1896).

[5] _Commentaries on the Law of England_, 4th ed., iv. 66.

[6] Austin's view, as set out in the _Province of Jurisprudence
Determined_, is that laws proper, or properly so-called, are
commands; laws which are not commands are laws improper or improperly
so-called. A command implies a definite superior in a position to
enforce the command. Where there is no superior to impose obedience
there is no law. Rules which "are imposed among nations or sovereigns
by opinions current among nations are usually styled the law of
nations or international law. Now, a law set or imposed by public
opinion is a law improperly so-called" (p. 147). For Sir H. Maine's
views see below.

[7] Introduction to the _Principles of Morals and Legislation_
(Oxford, 1879), pp. 24 et seq.

[8] _Province of Jurisprudence Determined_ (1861), p. 177; Austin
explains his view more fully at p. 127.

[9] _International Law_, p. 50.

[10] _Droit des gens_ (1896), i. 22. Compare Savigny: "A community of
judicial conscience can be formed among nations like that which
positive law creates in the bosom of one people. The foundations of
that intellectual community are constituted partly by a community of
race, partly and especially by a community of religious convictions.
Such is the basis of the law of nations which exists principally
among European Christian states, but which was not known to the
peoples of antiquity. We are entitled to look upon this law as a
positive law, although it is an incomplete judicial formation" (eine
unvollendete Rechtsbildung), _System des heutigen romischen Rechts_
(1840), i. S 11.

[11] _Elements_ (London, 1885), pp. 22 et seq.

[12] "It seems to me," says Professor L. Oppenheim, "that most
writers confound the conception of 'source' with that of 'cause,' and
through this mistake come to a standpoint from which certain factors
which influence the growth of International Law appear as sources of
rules of the Law of Nations. This mistake can be avoided by going
back to the meaning of the term 'source' in general. Source means a
spring or well, and has to be defined as the rising from the ground
of a stream of water; and, wanting to know whence it comes, we follow
the stream upwards until we come to the spot where it rises naturally
from the ground. On that spot, we say, is the source of the stream of
water. We know very well that this source is not the cause of the
existence of the stream of water. 'Source' signifies only the natural
rising of water from a certain spot of the ground, whatever natural
causes there may be for that rising. If we apply the conception of
source in this meaning to the term 'source of law' the confusion of
source with cause cannot arise. Just as we see streams of water
running over the surface of the earth, so we see, as it were, streams
of rules running over the area of law. And if we want to know whence
these rules come, we have to follow these streams upwards until we
come to their beginning. Where we find that such rules rise into
existence there is the source of them. Of course, rules of law do not
rise from a spot on the ground as water does; they rise from facts in
the historical development of a community. Thus a good many rules of
law rise every year from the Acts of Parliament. Source of Law is
therefore the name for an historical fact out of which rules of
conduct rise into existence and legal force" (International Law,
London, 1905, sec. 15.).

[13] _International Law_ (London, 1905) sec. 19.

[14] Note 8 to Grotius, L., ii. c. iii. S 3.

[15] Bishop Percy's translation (1847), p. 138.

[16] We have seen this in the progress made in the three instances
given above at the Congress of Paris (1856), the Conference of Berlin
(1878) and the Hague Conference of 1907.

INTERNATIONAL LAW (PRIVATE). There is in every territory the law of the land, or territorial law, by which the courts decide all cases that include no circumstances connected with any foreign territory. Often, however, such a circumstance suggests the question whether justice does not require that the law of some other territory shall be applied. Thus the Gretna Green marriages, by which English minors escaped the necessity of banns or the consent of parents or guardians, suggested the question, which was answered in the affirmative, whether even in England their validity ought not to be tried by the law of Scotland, where they were celebrated. Often, again, the question is suggested whether justice does not require that the courts of law should allow some effect to foreign legal proceedings, such as a judgment obtained or litigation pending abroad. Such questions as these are answered by private international law, which, since both laws and legal proceedings are emanations of public authority, may be defined as the department of legal science which is concerned with the effect to be given in the courts of law of any territory to public authority of another territory. The extradition of criminals is also an effect given to foreign public authority, but rather by the government which surrenders the criminal (see EXTRADITION) than by the courts of law, whose only function is to check the surrender so far as the domestic legislation allows them to do so. If private international law were defined as the effect to be given by any mode in one territory to the public authority of another, extradition would be included in it, as is often done; but since the principles governing extradition have little to do with those applicable to other cases, it seems best to treat it as a separate department of law, as is generally done in England.

_Comity of Nations._--In the 17th century the Dutch jurists Paul and John Voet and Huber brought forward a view which has since been largely adopted in England and the United States, namely, that the effect given by courts of law to foreign public authority is only due to the comity of nations, but for which every possible question before them would have to be decided by the law of the land. Comity, in that phrase, may only be intended to express the truth that foreign public authority has no inherent effect, without denying that the effect which domestic public authority allows to it is dictated by justice. But the limitations implied in the popular meaning of comity have sometimes been made the ground for deciding questions of private international law in the manner supposed to be most for the interest of litigants belonging to the territory; the phrase is consequently reprobated by most European continental writers, and had better be dropped. The justice on which private international law is founded acknowledges no interest but the general one of intercourse between persons sharing a common civilization in different countries. This interest, as manifesting itself in the domain of law, it seeks to satisfy and it is therefore a true legal justice, rightly classed under _law_, _droit_, _recht_, _diritto_, _derecho_ and other corresponding terms.

Of the two words which, together with _law_, make up the title of our subject, _private_ is justified by the fact that its application is between litigants in courts of law, and not between governments except so far as they may be such litigants. _International_ (although _interterritorial_ would be better) is justified by the facts that public authority, which may be internationally foreign, has to be considered, and that governments display a great interest in the question by concluding treaties about it, and occasionally even by suspending diplomatic relations when a court of one country has applied to the subjects of another a rule which the government of the latter deems unjust. But those who think that the primary division of law should be into public and private, and not into international (or interterritorial) and territorial, object to the order in which the three words of the name are usually placed, and call the subject "international private law."

_Conflict of Laws._--This is another name for our subject, and indeed an older one than "private international law," besides being still much used. But although laws may differ, they cannot properly be said to conflict, unless each can lay a just claim to application in the same circumstances. Now this does not happen. The justice which points out that in certain cases effect ought to be given in one territory to the laws or legal proceedings of another really traces the limits of laws and legal proceedings in space; and the tracing of limits is rather the prevention of conflict than its solution. Savigny has well pointed out that our subject is analogous to the determination of the limits of laws in time, which has to be made when the just application of a new enactment is to be distinguished from the _ex post facto_ application which cannot justly be allowed it. The truth which is aimed at in the phrase "conflict of laws" is that the main problem of our subject is the selection of a law for each given case; but different laws are candidates for selection, not from anything in them as laws, but from differing opinions about the justice of the case. From this selection, again, will be seen the contrast between private international law and attempts at the assimilation of the laws of different countries. To a great extent such assimilation is desirable, especially in mercantile law, but it must always be limited by different views of social order and differences in national habits of thought and action. So far as it is realized, private international law comes to an end with the occasion for selection.

_Territory._--This word, as entering into the definition of private international law, does not imply a separate state, whether sovereign or semi-sovereign; it includes every geographical area having a separate legal system, England and Scotland, as well as France or Germany. The case of the Gretna Green marriages illustrates the necessity of rules of private international law between all such, as well as between areas internationally foreign to one another; and indeed the rules are so applied, and in the language of our subject, the area of every separate legal system is foreign to every other such area. Only where a rule contemplates a person as attached more or less permanently to a particular territory, the tie which so attaches him to it may be either nationality or domicile if the territory is a separate state, as France; but it can only be domicile if the territory is combined with others in one state. Nothing but domicile can distinguish British subjects as belonging to England, Scotland or Jamaica, or citizens of the United States as belonging to New York or Pennsylvania.