Chapter II: Development and Science of the Law of Nations (2)

A third fact of great importance is that in this period a tendency arises to settle international conflicts more frequently than in former times by arbitration. Numerous arbitrations are actually taking place, and several treaties are concluded between different States stipulating the settlement by arbitration of all conflicts which might arise in future between the contracting parties.

The last fact of great importance which is epoch-making for this period is the Peace Conference of the Hague of 1899. This Conference produces, apart from three Declarations of minor importance, a Convention for the Pacific Settlement of International Conflicts, a Convention regarding the Laws and Customs of War on Land, and a Convention for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention. It also formulates, among others, the three wishes (1) that a conference should in the near future regulate the rights and duties of neutrals, (2) that a future conference should contemplate the declaration of the inviolability of private property in naval warfare, (3) that a future conference should settle the question of the bombardment of ports, towns, and villages by naval forces.

[Sidenote: The Twentieth Century.]

§ 50. Soon after the Hague Peace Conference, in October 1899, war breaks out in South Africa between Great Britain and the two Boer Republics, which leads to the latter's subjugation at the end of 1901. The assassination on June 10, 1900, of the German Minister and the general attack on the foreign legations at Peking necessitate united action of the Powers against China for the purpose of vindicating this violation of the fundamental rules of the Laws of Nations. Friendly relations are, however, re-established with China on her submitting to the conditions enumerated in the Final Protocol of Peking,[50] signed on September 7, 1901. In December 1902 Great Britain, Germany, and Italy institute a blockade of the coast of Venezuela for the purpose of making her comply with their demands for the indemnification of their subjects wronged during civil wars in Venezuela, and the latter consents to pay indemnities to be settled by a mixed commission of diplomatists.[51] As, however, Powers other than those blockading likewise claim indemnities, the matter is referred to the Permanent Court of Arbitration at the Hague, which in 1904 gives its award[52] in favour of the blockading Powers. In February 1904 war breaks out between Japan and Russia on account of Manchuria and Korea. Russia is defeated, and peace is concluded through the mediation of the United States of America, on September 5, 1905, at Portsmouth.[53] Korea, now freed from the influence of Russia, places herself by the Treaty of Seoul[54] of November 17, 1905, under the protectorate of Japan. Five years later, however, by the Treaty of Seoul[55] of August 22, 1910, she merges entirely into Japan.

[Footnote 50: See Martens, N.R.G. 2nd Ser. XXXII. p. 94.]

[Footnote 51: See Martens, N.R.G. 3rd Ser. I. p. 46.]

[Footnote 52: See Martens, N.R.G. 3rd Ser. I. p. 57.]

[Footnote 53: See Martens, N.R.G. 2nd Ser. XXXIII. p. 3.]

[Footnote 54: See Martens, N.R.G. 2nd Ser. XXXIV. p. 727.]

[Footnote 55: See Martens, N.R.G. 3rd Ser. IV. p. 24.]

The Real Union between Norway and Sweden, which was established by the Vienna Congress in 1815, is peacefully dissolved by the Treaty of Karlstad[56] of October 26, 1905. Norway becomes a separate kingdom under Prince Charles of Denmark, who takes the name of Haakon VIII., and Great Britain, Germany, Russia, and France guarantee by the Treaty of Christiania[57] of November 2, 1907, the integrity of Norway on condition that she would not cede any part of her territory to any foreign Power.

[Footnote 56: See Martens, N.R.G. 2nd Ser. XXXIV. p. 700.]

[Footnote 57: See Martens, N.R.G. 3rd Ser. II. p. 9, and below, § 574.]

The rivalry between France and Germany--the latter protesting against the position conceded to France in Morocco by the Anglo-French agreement signed at London on April 8, 1904--leads in January 1906 to the Conference of Algeciras, in which Great Britain, France, Germany, Belgium, Holland, Italy, Austria-Hungary, Portugal, Russia, Sweden, Spain, and the United States of America take part, and where on April 7, 1906, the General Act of the International Conference of Algeciras[58] is signed. This Act, which recognises, on the one hand, the independence and integrity of Morocco, and, on the other, equal commercial facilities for all nations in that country, contains:--(1) A declaration concerning the organisation of the Moroccan police; (2) regulations concerning the detection and suppression of the illicit trade in arms; (3) an Act of concession for a Moorish State Bank; (4) a declaration concerning an improved yield of the taxes and the creation of new sources of revenue; (5) regulations respecting customs and the suppression of fraud and smuggling; (6) a declaration concerning the public services and public works. But it would seem that this Act has not produced a condition of affairs of any permanency. Since, in 1911, internal disturbances in Morocco led to military action on the part of France and Spain, Germany, in July of the same year, sent a man-of-war to the port of Agadir. Thus the Moroccan question has been reopened, and fresh negotiations for its settlement are taking place between the Powers.[59]

[Footnote 58: See Martens, N.R.G. 2nd Ser. XXXIV. p. 238.]

[Footnote 59: It should be mentioned that by the Treaty of London of December 13, 1906, Great Britain, France, and Italy agree to co-operate in maintaining the independence and integrity of Abyssinia; see Martens, N.R.G. 2nd Ser. XXXV. p. 556.]

Two events of importance occur in 1908. The first is the merging of the Congo Free State[60] into Belgium, which annexation is not as yet recognised by all the Powers. The other is the crisis in the Near East caused by the ascendency of the so-called Young Turks and the introduction of a constitution in Turkey. Simultaneously on October 5, 1908, Bulgaria declares herself independent, and Austria-Hungary proclaims her sovereignty over Bosnia and Herzegovina, which two Turkish provinces had been under her administration since 1878. This violation of the Treaty of Berlin considerably endangers the peace of the world, and an international conference is proposed for the purpose of reconsidering the settlement of the Near Eastern question. Austria-Hungary, however, does not consent to this, but prefers to negotiate with Turkey alone in the matter, and a Protocol is signed by the two Powers on February 26, 1909, according to which Turkey receives a substantial indemnity in money and other concessions. Austria-Hungary negotiates likewise with Montenegro alone, and consents to the modifications in Article 29 of the Treaty of Berlin concerning the harbour of Antivary, which is to be freed from Austria-Hungarian control and is henceforth to be open to warships of all nations. Whereupon the demand for an international conference is abandoned and the Powers notify on April 7, 1909, their consent to the abolition of Article 25 and the amendment of Article 29 of the Treaty of Berlin.[61]

[Footnote 60: See Martens, N.R.G. 3rd Ser. II. p. 101.]

[Footnote 61: See Martens, N.R.G. 3rd Ser. II. p. 606.]

In 1910 Portugal becomes a Republic; but the Powers, although they enter provisionally into communication with the _de facto_ government, do not recognise the Republic until September 1911, after the National Assembly adopted the republican form of government.

In September 1911 war breaks out between Italy and Turkey, on account of the alleged maltreatment of Italian subjects in Tripoli.

International Law as a body of rules for the international conduct of States makes steady progress during this period. This is evidenced by congresses, conferences, and law-making treaties. Of conferences and congresses must be mentioned the second, third, and fourth Pan-American Congresses,[62] which take place at Mexico in 1901, at Rio in 1906, and at Buenos Ayres in 1910. Although the law-making treaties of these congresses have not found ratification, their importance cannot be denied. Further, in 1906 a conference assembles in Geneva for the purpose of revising the Geneva Convention of 1864 concerning the wounded in land warfare, and on July 6, 1906, the new Geneva[63] Convention is signed. Of the greatest importance, however, are the second Hague Peace Conference of 1907 and the Naval Conference of London of 1898-9.

[Footnote 62: See Moore, VI. § 969; Fried, "Pan-America" (1910); Barrett, "The Pan-American Union" (1911).]

[Footnote 63: See Martens, N.R.G. 3rd Ser. II. p. 323.]

The second Peace Conference assembles at the Hague on June 15, 1907. Whereas at the first there were only 26 States represented, 44 are represented at the second Peace Conference. The result of this Conference is contained in its Final Act,[64] which is signed on October 18, 1907, and embodies no fewer than thirteen law-making Conventions besides a declaration of minor importance. Of these Conventions, 1, 4, and 10 are mere revisions of Conventions agreed upon at the first Peace Conference of 1899, but the others are new and concern:--The employment of force for the recovery of contract debts (2); the commencement of hostilities (3); the rights and duties of neutrals in land warfare (5); the status of enemy merchant-ships at the outbreak of hostilities (6); the conversion of merchantmen into men-of-war (7); the laying of submarine mines (8); the bombardment by naval forces (9); restrictions of the right of capture in maritime war (11); the establishment of an International Prize Court (12); the rights and duties of neutrals in maritime war (13).

[Footnote 64: See Martens, N.R.G. 3rd Ser. III. p. 323.]

The Naval Conference of London assembles on December 4, 1908, for the purpose of discussing the possibility of creating a code of prize law without which the International Prize Court, agreed upon at the second Hague Peace Conference, could not be established, and produces the Declaration of London, signed on February 26, 1909. This Declaration contains 71 articles, and settles in nine chapters the law concerning:--(1) Blockade; (2) contraband; (3) un-neutral service; (4) destruction of neutral prizes; (5) transfer to a neutral flag; (6) enemy character; (7) convoy; (8) resistance to search; and (9) compensation. The Declaration is accompanied by a General Report on its stipulations which is intended to serve as an official commentary.

The movement which began in the last half of the nineteenth century towards the conclusion of international agreements concerning matters of international administration, develops favourably during this period. The following conventions are the outcome of this movement:--(1) Concerning the preservation of wild animals, birds, and fish in Africa (1900); (2) concerning international hydrographic and biological investigations in the North Sea (1901); (3) concerning protection of birds useful for agriculture (1902); (4) concerning the production of sugar (1902); (5) concerning the White Slave traffic (1904); (6) concerning the establishment of an International Agricultural Institute at Rome (1905); (7) concerning unification of the Pharmacopoeial Formulas (1906); (8) concerning the prohibition of the use of white phosphorus (1906); (9) concerning the prohibition of night work for women (1906); (10) concerning the international circulation of motor vehicles (1909).

It is, lastly, of the greatest importance to mention that the so-called peace movement,[65] which aims at the settlement of all international disputes by arbitration or judicial decision of an International Court, gains considerable influence over the Governments and public opinion everywhere since the first Hague Peace Conference. A great number of arbitration treaties are agreed upon, and the Permanent Court of Arbitration established at the Hague gives its first award[66] in a case in 1902 and its ninth in 1911. The influence of these decisions upon the peaceful settlement of international differences generally is enormous, and it may confidently be expected that the third Hague Peace Conference will make arbitration obligatory for some of the matters which do not concern the vital interests, the honour, and the independence of the States. It is a hopeful sign that, whereas most of the existing arbitration treaties exempt conflicts which concern the vital interests, the honour, and the independence, Argentina and Chili in 1902, Denmark and Holland in 1903, Denmark and Italy in 1905, Denmark and Portugal in 1907, Argentina and Italy in 1907, the Central American Republics of Costa Rica, Guatemala, Honduras, Nicaragua, and San Salvador in 1907, Italy and Holland in 1907, entered into general arbitration treaties according to which all differences, without any exception, shall be settled by arbitration.[67]

[Footnote 65: See Fried, "Handbuch der Friedensbewegung," 2nd ed., 2 vols. (1911).]

[Footnote 66: See below, § 476.]

[Footnote 67: The general arbitration treaties concluded in August 1911 by the United States with Great Britain and France have not yet been ratified, as the consent of the American Senate is previously required.]

[Sidenote: Six Lessons of the History of the Law of Nations.]

§ 51. It is the task of history, not only to show how things have grown in the past, but also to extract a moral for the future out of the events of the past. Six morals can be said to be deduced from the history of the development of the Law of Nations:

(1) The first and principal moral is that a Law of Nations can exist only if there be an equilibrium, a balance of power, between the members of the Family of Nations. If the Powers cannot keep one another in check, no rules of law will have any force, since an over-powerful State will naturally try to act according to discretion and disobey the law. As there is not and never can be a central political authority above the Sovereign States that could enforce the rules of the Law of Nations, a balance of power must prevent any member of the Family of Nations from becoming omnipotent. The history of the times of Louis XIV. and Napoleon I. shows clearly the soundness of this principle.[68]

[Footnote 68: Attention ought to be drawn to the fact that, although the necessity of a balance of power is generally recognised, there are some writers of great authority who vigorously oppose this principle, as, for instance, Bulmerincq, "Praxis, Theorie und Codification des Völkerrechts" (1874), pp. 40-50. On the principle itself see Donnadieu, "Essai sur la Théorie de l'Équilibre" (1900), and Dupuis, "Le Principe d'Équilibre et de Concert Européen" (1909).]

(2) The second moral is that International Law can develop progressively only when international politics, especially intervention, are made on the basis of real State interests. Dynastic wars belong to the past, as do interventions in favour of legitimacy. It is neither to be feared, nor to be hoped, that they should occur again in the future. But if they did, they would hamper the development of the Law of Nations in the future as they have done in the past.

(3) The third moral is that the principle of nationality is of such force that it is fruitless to try to stop its victory. Wherever a community of many millions of individuals, who are bound together by the same blood, language, and interests, become so powerful that they think it necessary to have a State of their own, in which they can live according to their own ideals and can build up a national civilisation, they will certainly get that State sooner or later. What international politics can, and should, do is to enforce the rule that minorities of individuals of another race shall not be outside the law, but shall be treated on equal terms with the majority. States embracing a population of several nationalities can exist and will always exist, as many examples show.

(4) The fourth moral is that every progress in the development of International Law wants due time to ripen. Although one must hope that the time will come when war will entirely disappear, there is no possibility of seeing this hope realised in our time. The first necessities of an eternal peace are that the surface of the earth should be shared between States of the same standard of civilisation, and that the moral ideas of the governing classes in all the States of the world should undergo such an alteration and progressive development as would create the conviction that arbitral awards and decisions of courts of justice are alone adequate means for the settlement of international differences. Eternal peace is an ideal, and in the very term "ideal" is involved the conviction of the impossibility of its realisation in the present, although it is a duty to aim constantly at such realisation. The Permanent Court of Arbitration at the Hague, now established by the Hague Peace Conference of 1899, is an institution that can bring us nearer to such realisation than ever could have been hoped. And codification of parts of the Law of Nations, following the codification of the rules regarding land warfare and the codification comprised in the Declaration of London, will in due time arrive, and will make the legal basis of international intercourse firmer, broader, and more manifest than before.[69]

[Footnote 69: See Oppenheim, "Die Zukunft des Völkerrechts" (1911) where some progressive steps are discussed which the future may realise.]

(5) The fifth moral is that the progress of International Law depends to a great extent upon whether the legal school of International Jurists prevails over the diplomatic school.[70] The legal school desires International Law to develop more or less on the lines of Municipal Law, aiming at the codification of firm, decisive, and unequivocal rules of International Law, and working for the establishment of international Courts for the purpose of the administration of international justice. The diplomatic school, on the other hand, considers International Law to be, and prefers it to remain, rather a body of elastic principles than of firm and precise rules. The diplomatic school opposes the establishment of international Courts because it considers diplomatic settlement of international disputes, and failing this arbitration, preferable to international administration of justice by international Courts composed of permanently appointed judges. There is, however, no doubt that international Courts are urgently needed, and that the rules of International Law require now such an authoritative interpretation and administration as only an international Court can supply.

[Footnote 70: I name these schools "diplomatic" and "legal" for want of better denomination. They must, however, not be confounded with the three schools of the "Naturalists," "Positivists," and "Grotians," details concerning which will be given below, §§ 55-57.]

(6) The sixth, and last, moral is that the progressive development of International Law depends chiefly upon the standard of public morality on the one hand, and, on the other, upon economic interests. The higher the standard of public morality rises, the more will International Law progress. And the more important international economic interests grow, the more International Law will grow. For, looked upon from a certain stand-point, International Law is, just like Municipal Law, a product of moral and of economic factors, and at the same time the basis for a favourable development of moral and economic interests. This being an indisputable fact, it may, therefore, fearlessly be maintained that an immeasurable progress is guaranteed to International Law, since there are eternal moral and economic factors working in its favour.

III

THE SCIENCE OF THE LAW OF NATIONS

Phillimore, I., Preface to the first edition--Lawrence, §§
31-36--Manning, pp. 21-65--Halleck, I. pp. 12, 15, 18, 22, 25, 29,
34, 42--Walker, History, I. pp. 203-337, and "The Science of
International Law" (1893), _passim_--Taylor, §§ 37-48--Wheaton, §§
4-13--Rivier in Holtzendorff, I. pp. 337-475--Nys, I. pp.
213-328--Martens, I. §§ 34-38--Fiore, I. Nos. 53-88, 164-185,
240-272--Calvo, I. pp. 27-34, 44-46, 51-55, 61-63, 70-73,
101-137--Bonfils, Nos. 147-153--Despagnet, Nos. 28-35--Ullmann, §
18--Kaltenborn, "Die Vorläufer des Hugo Grotius" (1848)--Holland,
Studies, pp. 1-58, 168-175--Westlake, Chapters, pp. 23-77--Ward,
"Enquiry into the Foundation and History of the Law of Nations," 2
vols. (1795)--Nys, "Le droit de la guerre et les précurseurs de
Grotius" (1882), "Notes pour servir à l'histoire ... du droit
international en Angleterre" (1888), "Les origines du droit
international" (1894)--Wheaton, "Histoire des progrès du droit des
gens en Europe" (1841)--Oppenheim in A.J. I. (1908), pp.
313-356--Pollock in the Cambridge Modern History, vol. XII.
(1910), pp. 703-729--See also the bibliographies enumerated below
in § 61.

[Sidenote: Forerunners of Grotius.]

§ 52. The science of the modern Law of Nations commences from Grotius's work, "De Jure Belli ac Pacis libri III.," because in it a fairly complete system of International Law was for the first time built up as an independent branch of the science of law. But there were many writers before Grotius who wrote on special parts of the Law of Nations. They are therefore commonly called "Forerunners of Grotius." The most important of these forerunners are the following: (1) Legnano, Professor of Law in the University of Bologna, who wrote in 1360 his book "De bello, de represaliis, et de duello," which was, however, not printed before 1477; (2) Belli, an Italian jurist and statesman, who published in 1563 his book, "De re militari et de bello"; (3) Brunus, a German jurist, who published in 1548 his book, "De legationibus"; (4) Victoria, Professor in the University of Salamanca, who published in 1557 his "Relectiones theologicae,"[71] which partly deals with the Law of War; (5) Ayala, of Spanish descent but born in Antwerp, a military judge in the army of Alexandro Farnese, the Prince of Parma. He published in 1582 his book, "De jure et officiis bellicis et disciplina militari"; (6) Suarez, a Spanish Jesuit and Professor at Coimbra, who published in 1612 his "Tractatus de legibus et de legislatore," in which (II. c. 19, n. 8) for the first time the attempt is made to found a law between the States on the fact that they form a community of States; (7) Gentilis (1552-1608), an Italian jurist, who became Professor of Civil Law in Oxford. He published in 1585 his work, "De legationibus," in 1588 and 1589 his "Commentationes de jure belli," and in 1598 an enlarged work on the same matter under the title "De jure belli libri tres."[72] His "Advocatio Hispanica" was edited, after his death, in 1613 by his brother Scipio. Gentilis's book "De jure belli" supplies, as Professor Holland shows, the model and the framework of the first and third book of Grotius's "De Jure Belli ac Pacis." "The first step"--Holland rightly says--"towards making International Law what it is was taken, not by Grotius, but by Gentilis."

[Footnote 71: See details in Holland, Studies, pp. 51-52.]

[Footnote 72: Re-edited in 1877 by Professor Holland. On Gentilis, see Holland, Studies, pp. 1-391; Westlake, Chapters, pp. 33-36; Walker, History, I. pp. 249-277; Thamm, "Albericus Gentilis und seine Bedeutung für das Völkerrecht" (1896); Phillipson in _The Journal of the Society of Comparative Legislation_, New Series, XII. (1912), pp. 52-80; Balch in A.J. V. (1911), pp. 665-679.]

[Sidenote: Grotius.]

§ 53. Although Grotius owes much to Gentilis, he is nevertheless the greater of the two and bears by right the title of "Father of the Law of Nations." Hugo Grotius was born at Delft in Holland in 1583. He was from his earliest childhood known as a "wondrous child" on account of his marvellous intellectual gifts and talents. He began to study law at Leyden when only eleven years old, and at the age of fifteen he took the degree of Doctor of Laws at Orleans in France. He acquired a reputation, not only as a jurist, but also as a Latin poet and a philologist. He first practised as a lawyer, but afterwards took to politics and became involved in political and religious quarrels which led to his arrest in 1618 and condemnation to prison for life. In 1621, however, he succeeded in escaping from prison and went to live for ten years in France. In 1634 he entered into the service of Sweden and became Swedish Minister in Paris. He died in 1645 at Rostock in Germany on his way home from Sweden, whither he had gone to tender his resignation.

Even before he had the intention of writing a book on the Law of Nations Grotius took an interest in matters international. For in 1609, when only twenty-four years old, he published--anonymously at first--a short treatise under the title "Mare liberum," in which he contended that the open sea could not be the property of any State, whereas the contrary opinion was generally prevalent.[73] But it was not until fourteen years later that Grotius began, during his exile in France, to write his "De Jure Belli ac Pacis libri III.," which was published, after a further two years, in 1625, and of which it has rightly been maintained that no other book, with the single exception of the Bible, has ever exercised a similar influence upon human minds and matters. The whole development of the modern Law of Nations itself, as well as that of the science of the Law of Nations, takes root from this for ever famous book. Grotius's intention was originally to write a treatise on the Law of War, since the cruelties and lawlessness of warfare of his time incited him to the work. But thorough investigation into the matter led him further, and thus he produced a system of the Law of Nature and Nations. In the introduction he speaks of many of the authors before him, and he especially quotes Ayala and Gentilis. Yet, although he recognises their influence upon his work, he is nevertheless aware that his system is fundamentally different from those of his forerunners. There was in truth nothing original in Grotius's start from the Law of Nature for the purpose of deducing therefrom rules of a Law of Nations. Other writers before his time, and in especial Gentilis, had founded their works upon it. But nobody before him had done it in such a masterly way and with such a felicitous hand. And it is on this account that Grotius bears not only, as already mentioned, the title of "Father of the Law of Nations," but also that of "Father of the Law of Nature."

[Footnote 73: See details with regard to the controversy concerning the freedom of the open sea below, §§ 248-250. Grotius's treatise "Mare liberum" is--as we know now--the twelfth chapter of the work "De jure praedae," written in 1604 but never published by Grotius; it was not printed till 1868. See below, § 250.]

Grotius, as a child of his time, could not help starting from the Law of Nature, since his intention was to find such rules of a Law of Nations as were eternal, unchangeable, and independent of the special consent of the single States. Long before Grotius, the opinion was generally prevalent that above the positive law, which had grown up by custom or by legislation of a State, there was in existence another law which had its roots in human reason and which could therefore be discovered without any knowledge of positive law. This law of reason was called Law of Nature or Natural Law. But the system of the Law of Nature which Grotius built up and from which he started when he commenced to build up the Law of Nations, became the most important and gained the greatest influence, so that Grotius appeared to posterity as the Father of the Law of Nature as well as that of the Law of Nations.

Whatever we may nowadays think of this Law of Nature, the fact remains unshaken that for more than two hundred years after Grotius jurists, philosophers, and theologians firmly believed in it. And there is no doubt that, but for the systems of the Law of Nature and the doctrines of its prophets, the modern Constitutional Law and the modern Law of Nations would not be what they actually are. The Law of Nature supplied the crutches with whose help history has taught mankind to walk out of the institutions of the Middle Ages into those of modern times. The modern Law of Nations in especial owes its very existence[74] to the theory of the Law of Nature. Grotius did not deny that there existed in his time already a good many customary rules for the international conduct of the States, but he expressly kept them apart from those rules which he considered the outcome of the Law of Nature. He distinguishes, therefore, between the _natural_ Law of Nations on the one hand, and, on the other hand, the _customary_ Law of Nations, which he calls the _voluntary_ Law of Nations. The bulk of Grotius's interest is concentrated upon the natural Law of Nations, since he considered the voluntary of minor importance. But nevertheless he does not quite neglect the voluntary Law of Nations. Although he mainly and chiefly lays down the rules of the natural Law of Nations, he always mentions also voluntary rules concerning the different matters.

[Footnote 74: See Pollock in _The Journal of the Society of Comparative Legislation_, New Series, III. (1901), p. 206.]

Grotius's influence was soon enormous and reached over the whole of Europe. His book[75] went through more than forty-five editions, and many translations have been published.

[Footnote 75: See Rivier in Holtzendorff, I. p. 412. The last English translation is that of 1854 by William Whewell.]

[Sidenote: Zouche.]

§ 54. But the modern Law of Nations has another, though minor, founder besides Grotius, and this is an Englishman, Richard Zouche[76] (1590-1660), Professor of Civil Law at Oxford and a Judge of the Admiralty Court. A prolific writer, the book through which he acquired the title of "Second founder of the Law of Nations," appeared in 1650 and bears the title: "Juris et judicii fecialis, sive juris inter gentes, et quaestionum de eodem explicatio, qua, quae ad pacem et bellum inter diversos principes aut populos spectant, ex praecipuis historico jure peritis exhibentur." This little book has rightly been called the first manual of the _positive_ Law of Nations. The standpoint of Zouche is totally different from that of Grotius in so far as, according to him, the customary Law of Nations is the most important part of that law, although, as a child of his time, he does not at all deny the existence of a natural Law of Nations. It must be specially mentioned that Zouche is the first who used the term _jus inter gentes_ for that new branch of law. Grotius knew very well and says that the Law of Nations is a law _between_ the States, but he called it _jus gentium_, and it is due to his influence that until Bentham nobody called the Law of Nations _Inter_national Law.

[Footnote 76: See Phillipson in _The Journal of the Society of Comparative Legislation_, New Series, IX. (1908), pp. 281-304.]

The distinction between the natural Law of Nations, chiefly treated by Grotius, and the customary or voluntary Law of Nations, chiefly treated by Zouche,[77] gave rise in the seventeenth and eighteenth centuries to three different schools[78] of writers on the Law of Nations--namely, the "Naturalists," the "Positivists," and the "Grotians."

[Footnote 77: It should be mentioned that already before Zouche, another Englishman, John Selden, in his "De jure naturali et gentium secundum disciplinam ebraeorum" (1640), recognised the importance of the positive Law of Nations. The successor of Zouche as a Judge of the Admiralty Court, Sir Leoline Jenkins (1625-1684), ought also to be mentioned. His opinions concerning questions of maritime law, and in especial prize law, were of the greatest importance for the development of maritime international law. See Wynne, "Life of Sir Leoline Jenkins," 2 vols. (1740).]

[Footnote 78: These three schools of writers must not be confounded with the division of the present international jurists into the diplomatic and legal schools; see above, § 51, No. 5.]

[Sidenote: The Naturalists.]

§ 55. "Naturalists," or "Deniers of the Law of Nations," is the appellation of those writers who deny that there is any positive Law of Nations whatever as the outcome of custom or treaties, and who maintain that all Law of Nations is only a part of the Law of Nature. The leader of the Naturalists is Samuel Pufendorf (1632-1694), who occupied the first chair which was founded for the Law of Nature and Nations at a University--namely, that at Heidelberg. Among the many books written by Pufendorf, three are of importance for the science of International Law:--(1) "Elementa jurisprudentiae universalis," 1666; (2) "De jure naturae et gentium," 1672; (3) "De officio hominis et civis juxta legem naturalem," 1673. Starting from the assertion of Hobbes, "De Cive," XIV. 4, that Natural Law is to be divided into Natural Law of individuals and of States, and that the latter is the Law of Nations, Pufendorf[79] adds that outside this Natural Law of Nations no voluntary or positive Law of Nations exists which has the force of real law (_quod quidem legis proprie dictae vim habeat, quae gentes tamquam a superiore profecta stringat_).

[Footnote 79: De jure naturae et gentium, II. c. 3, § 22.]

The most celebrated follower of Pufendorf is the German philosopher, Christian Thomasius (1655-1728), who published in 1688 his "Institutiones jurisprudentiae divinae," and in 1705 his "Fundamenta juris naturae et gentium." Of English Naturalists may be mentioned Francis Hutcheson ("System of Moral Philosophy," 1755) and Thomas Rutherford ("Institutes of Natural Law; being the Substance of a Course of Lectures on Grotius read in St. John's College, Cambridge," 2 vols. 1754-1756). Jean Barbeyrac (1674-1744), the learned French translator and commentator of the works of Grotius, Pufendorf, and others, and, further, Jean Jacques Burlamaqui (1694-1748), a native of Geneva, who wrote the "Principes du droit de la nature et des gens," ought likewise to be mentioned.

[Sidenote: The Positivists.]

§ 56. The "Positivists" are the antipodes of the Naturalists. They include all those writers who, in contradistinction to Hobbes and Pufendorf, not only defend the existence of a positive Law of Nations as the outcome of custom or international treaties, but consider it more important than the natural Law of Nations, the very existence of which some of the Positivists deny, thus going beyond Zouche. The positive writers had not much influence in the seventeenth century, during which the Naturalists and the Grotians carried the day, but their time came in the eighteenth century.

Of seventeenth-century writers, the Germans Rachel and Textor must be mentioned. Rachel published in 1676 his two dissertations, "De jure naturae et gentium," in which he defines the Law of Nations as the law to which a plurality of free States are subjected, and which comes into existence through tacit or express consent of these States (_Jus plurium liberalium gentium pacto sive placito expressim aut tacite initum, quo utilitatis gratia sibi in vicem obligantur_). Textor published in 1680 his "Synopsis juris gentium."

In the eighteenth century the leading Positivists, Bynkershoek, Moser, and Martens, gained an enormous influence.

Cornelius van Bynkershoek[80] (1673-1743), a celebrated Dutch jurist, never wrote a treatise on the Law of Nations, but gained fame through three books dealing with different parts of this Law. He published in 1702 "De dominio maris," in 1721 "De foro legatorum," in 1737 "Quaestionum juris publici libri II." According to Bynkershoek the basis of the Law of Nations is the common consent of the nations which finds its expression either in international custom or in international treaties.

[Footnote 80: See Phillipson in _The Journal of the Society of Comparative Legislation_, New Series, IX. (1908), pp. 27-49.]

Johann Jakob Moser (1701-1785), a German Professor of Law, published many books concerning the Law of Nations, of which three must be mentioned: (1) "Grundsätze des jetzt üblichen Völkerrechts in Friedenszeiten," 1750; (2) "Grundsätze des jetzt üblichen Völkerrechts in Kriegszeiten," 1752; (3) "Versuch des neuesten europäischen Völkerrechts in Friedens- und Kriegszeiten," 1777-1780. Moser's books are magazines of an enormous number of facts which are of the greatest value for the positive Law of Nations. Moser never fights against the Naturalists, but he is totally indifferent towards the natural Law of Nations, since to him the Law of Nations is positive law only and based on international custom and treaties.

Georg Friedrich von Martens (1756-1821), Professor of Law in the University of Göttingen, also published many books concerning the Law of Nations. The most important is his "Précis du droit des gens moderne de l'Europe," published in 1789, of which William Cobbett published in 1795 at Philadelphia an English translation, and of which as late as 1864 appeared a new edition at Paris with notes by Charles Vergé. Martens began the celebrated collection of treaties which goes under the title "Martens, Recueil des Traités," and is continued to our days.[81] The influence of Martens was great, and even at the present time is considerable. He is not an exclusive Positivist, since he does not deny the existence of natural Law of Nations, and since he sometimes refers to the latter in case he finds a gap in the positive Law of Nations. But his interest is in the positive Law of Nations, which he builds up historically on international custom and treaties.

[Footnote 81: Georg Friedrich von Martens is not to be confounded with his nephew Charles de Martens, the author of the "Causes célèbres de droit des gens" and of the "Guide diplomatique."]

[Sidenote: The Grotians.]

§ 57. The "Grotians" stand midway between the Naturalists and the Positivists. They keep up the distinction of Grotius between the natural and the voluntary Law of Nations, but, in contradistinction to Grotius, they consider the positive or voluntary of equal importance to the natural, and they devote, therefore, their interest to both alike. Grotius's influence was so enormous that the majority of the authors of the seventeenth and eighteenth centuries were Grotians, but only two of them have acquired a European reputation--namely, Wolff and Vattel.

Christian Wolff (1679-1754), a German philosopher who was first Professor of Mathematics and Philosophy in the Universities of Halle and Marburg and afterwards returned to Halle as Professor of the Law of Nature and Nations, was seventy years of age when, in 1749, he published his "Jus gentium methodo scientifica pertractatum." In 1750 followed his "Institutiones juris naturae et gentium." Wolff's conception of the Law of Nations is influenced by his conception of the _civitas gentium maxima_. The fact that there is a Family of Nations in existence is strained by Wolff into the doctrine that the totality of the States forms a world-State above the component member States, the so-called _civitas gentium maxima_. He distinguishes four different kinds of Law of Nations--namely, the natural, the voluntary, the customary, and that which is expressly created by treaties. The latter two kinds are alterable, and have force only between those single States between which custom and treaties have created them. But the natural and the voluntary Law of Nations are both eternal, unchangeable, and universally binding upon all the States. In contradistinction to Grotius, who calls the customary Law of Nations "voluntary," Wolff names "voluntary" those rules of the Law of Nations which are, according to his opinion, tacitly imposed by the _civitas gentium maxima_, the world-State, upon the member States.

Emerich de Vattel[82] (1714-1767), a Swiss from Neuchâtel, who entered into the service of Saxony and became her Minister at Berne, did not in the main intend any original work, but undertook the task of introducing Wolff's teachings concerning the Law of Nations into the courts of Europe and to the diplomatists. He published in 1758 his book, "Le droit des gens, ou principes de la loi naturelle appliqués à la conduite et aux affaires des Nations et des Souverains." But it must be specially mentioned that Vattel expressly rejects Wolff's conception of the _civitas gentium maxima_ in the preface to his book. Numerous editions of Vattel's book have appeared, and as late as 1863 Pradier-Fodéré re-edited it at Paris. An English translation by Chitty appeared in 1834 and went through several editions. His influence was very great, and in diplomatic circles his book still enjoys an unshaken authority.

[Footnote 82: See Montmorency in _The Journal of the Society of Comparative Legislation_, New Series, X. (1909), pp. 17-39.]

[Sidenote: Treatises of the Nineteenth and Twentieth Centuries.]

§ 58. Some details concerning the three schools of the Naturalists, Positivists, and Grotians were necessary, because these schools are still in existence. I do not, however, intend to give a list of writers on special subjects, and the following list of treatises comprises the more important ones only.

(1) BRITISH TREATISES

_William Oke Manning_: Commentaries on the Law of Nations, 1839;
new ed. by Sheldon Amos, 1875.

_Archer Polson_: Principles of the Law of Nations, 1848; 2nd ed.
1853.

_Richard Wildman_: Institutes of International Law, 2 vols.
1849-1850.

_Sir Robert Phillimore_: Commentaries upon International Law, 4
vols. 1854-1861; 3rd ed. 1879-1888.

_Sir Travers Twiss_: The Law of Nations, etc., 2 vols. 1861-1863;
2nd ed., vol. I. (Peace) 1884, vol. II. (War) 1875; French
translation, 1887-1889.

_Sheldon Amos_: Lectures on International Law, 1874.

_Sir Edward Shepherd Creasy_: First Platform of International Law,
1876.

_William Edward Hall_: Treatise on International Law, 1880; 6th
ed. 1909 (by Atlay).

_Sir Henry Sumner Maine_: International Law, 1883; 2nd ed. 1894
(Whewell Lectures, not a treatise).

_James Lorimer_: The Institutes of International Law, 2 vols.
1883-1884; French translation by Nys, 1885.

_Leone Levi_: International Law, 1888.

_T. J. Lawrence_: The Principles of International Law, 1895; 4th
ed. 1910.

_Thomas Alfred Walker_: A Manual of Public International Law,
1895.

_Sir Sherston Baker_: First Steps in International Law, 1899.

_F. E. Smith_: International Law, 1900; 4th ed. 1911 (by Wylie).

_John Westlake_: International Law, vol. I. (Peace) 1904, vol. II.
(War) 1907; 2nd ed. vol. I. 1910.

(2) NORTH AMERICAN TREATISES

_James Kent_: Commentary on International Law, 1826; English
edition by Abdy, Cambridge, 1888.

_Henry Wheaton_: Elements of International Law, 1836; 8th American
ed. by Dana, 1866; 3rd English ed. by Boyd, 1889; 4th English ed.
by Atlay, 1904.

_Theodore D. Woolsey_: Introduction to the Study of International
Law, 1860; 6th ed. by Th. S. Woolsey, 1891.

_Henry W. Halleck_: International Law, 2 vols. 1861; 4th English
ed. by Sir Sherston Baker, 1907.

_Francis Wharton_: A Digest of the International Law of the United
States, 3 vols. 1886.

_George B. Davis_: The Elements of International Law, 1887; 3rd
ed. 1908.

_Hannis Taylor_: A Treatise on International Public Law, 1901.

_George Grafton Wilson and George Fox Tucker_: International Law,
1901; 5th ed. 1910.

_Edwin Maxey_: International Law, with illustrative cases, 1906.

_John Basset Moore_: A Digest of International Law, 8 vols. 1906.

_George Grafton Wilson_: Handbook of International Law, 1910.

(3) FRENCH TREATISES

_Funck-Brentano et Albert Sorel_: Précis du Droit des Gens, 1877;
2nd ed. 1894.

_P. Pradier-Fodéré_: Traité de Droit International Public, 8 vols.
1885-1906.

_Henry Bonfils_: Manuel de Droit International Public, 1894; 5th
ed. by Fauchille, 1908.

_Georges Bry_: Précis élémentaire de Droit International Public;
5th ed. 1906.

_Frantz Despagnet_: Cours de Droit International Public, 1894; 4th
ed. by De Boeck, 1910.

_Robert Piédelièvre_: Précis de Droit International Public, 2
vols. 1894-1895.

_A. Mérignhac_: Traité de Droit Public International, vol. I.
1905; vol. II. 1907.

(4) GERMAN TREATISES

_Theodor Schmalz_: Europäisches Völkerrecht, 1816.

_Johann Ludwig Klüber_: Droit des Gens moderne, 1819; German ed.
under the title of Europäisches Völkerrecht in 1821; last German
ed. by Morstadt in 1851, and last French ed. by Ott in 1874.

_Karl Heinrich Ludwig Poelitz_: Practisches (europäisches)
Völkerrecht, 1828.

_Friedrich Saalfeld_: Handbuch des positiven Völkerrechts, 1833.

_August Wilhelm Heffter_: Das europäische Völkerrecht der
Gegenwart, 1844; 8th ed. by Geffcken, 1888; French translations by
Bergson in 1851 and Geffcken in 1883.

_Heinrich Bernhard Oppenheim_: System des Völkerrechts, 1845; 2nd
ed. 1866.

_Johann Caspar Bluntschli_: Das moderne Völkerrecht der
civilisirten Staaten als Rechtsbuch dargestellt, 1868; 3rd ed.
1878; French translation by Lardy, 5th ed. 1895.

_Adolf Hartmann_: Institutionen des praktischen Völkerrechts in
Friedenszeiten, 1874; 2nd ed. 1878.

_Franz von Holtzendorff_: Handbuch des Völkerrechts, 4 vols.
1885-1889. Holtzendorff is the editor and a contributor, but there
are many other contributors.

_August von Bulmerincq_: Das Völkerrecht, 1887.

_Karl Gareis_: Institutionen des Völkerrechts, 1888; 2nd. ed.
1901.

_E. Ullmann_: Völkerrecht, 1898; 2nd ed. 1908.

_Franz von Liszt_: Das Völkerrecht, 1898; 6th ed. 1910.

(5) ITALIAN TREATISES

_Luigi Casanova_: Lezioni di diritto internazionale, published
after the death of the author by Cabella, 1853; 3rd. ed. by Brusa,
1876.

_Pasquale Fiore_: Trattato di diritto internazionale publico,
1865; 4th ed. in 3 vols. 1904; French translation of the 2nd ed.
by Antoine, 1885.

_Giuseppe Carnazza-Amari_: Trattato di diritto internazionale di
pace, 2 vols. 1867-1875; French translation by Montanari-Pevest,
1881.

_Antonio del Bon_: Institutioni del diritto publico
internazionale, 1868.

_Giuseppe Sandona_: Trattato di diritto internazionale moderno, 2
vols. 1870.

_Gian Battista Pertille_: Elementi di diritto internazionale, 2
vols. 1877.

_Augusto Pierantoni_: Trattato di diritto internazionale, vol. I.
1881. (No further volume has appeared.)

_Giovanni Lomonaco_: Trattato di diritto internazionale publico,
1905.

_Giulio Diena_: Principî di diritto internazionale, Parte Prima,
Diritto internaziole publico, 1908.

(6) SPANISH AND SPANISH-AMERICAN TREATISES

_Andrés Bello_: Principios de derecho de gentes (internacional),
1832; last ed. in 2 vols. by Silva, 1883.

_José Maria de Pando_: Elementos del derecho internacional,
published after the death of the author, 1843-1844.

_Antonio Riquelme_: Elementos de derecho público internacional,
etc.; 2 vols. 1849.

_Carlos Calvo_: Le Droit International, etc. (first edition in
Spanish, following editions in French), 1868; 5th ed. in 6 vols.
1896.

_Amancio Alcorta_: Curso de derecho internacional público, vol. I.
1886; French translation by Lehr, 1887.

_Marquis de Olivart_: Trattato y notas de derecho internacional
público, 4 vols. 1887; 4th ed. 1903-1904.

_Luis Gesteso y Acosta_: Curso de derecho internacional público,
1894.

_Miguel Cruchaga_: Nociones de derecho internacional, 1899; 2nd
ed. 1902.

_Manuel Torres Campos_: Elementos de derecho internacional
público; 2nd. ed. 1904.

(7) TREATISES OF AUTHORS OF OTHER NATIONALITIES

_Frederick Kristian Bornemann_: Forelæsninger over den positive
Folkeret, 1866.

_Friedrich von Martens_: Völkerrecht, 2 vols. 1883; a German
translation by Berghohm of the Russian original. A French
translation by Léo in 3 vols. appeared in the same year. The
Russian original went through its 5th ed. in 1905.

_Jan Helenus Ferguson_: Manual of International Law, etc., 2 vols.
1884. The author is Dutch, but the work is written in English.

_Alphonse Rivier_: Lehrbuch des Völkerrechts, 1894; 2nd ed. 1899,
and the larger work in two vols. under the title: Principes du
Droit des Gens, 1896. The author of these two excellent books was
a Swiss who taught International Law at the University of
Brussels.

_H. Matzen_: Forelæsninger over den positive Folkeret, 1900.

_Ernest Nys_: Le droit international, 3 vols. 1904-1906. The
author of this exhaustive treatise is a Belgian jurist whose
researches in the history of the science of the Law of Nations
have gained him far-reaching reputation.[83]

[Footnote 83: The first volume of Nys contains in its pp. 251-328
an exhaustive enumeration of all the more important works on
International Law, treatises as well as monographs, and I have
much pleasure in referring my readers to this learned work.]

_J. De Louter_: Het Stellig Volkenrecht, 2 vols. 1910.

[Sidenote: The Science of the Law of Nations in the Nineteenth and Twentieth Centuries as represented by treatises.]

§ 59. The Science of the Law of Nations, as left by the French Revolution, developed progressively during the nineteenth century under the influence of three factors. The first factor is the endeavour, on the whole sincere, of the Powers since the Congress of Vienna to submit to the rules of the Law of Nations. The second factor is the many law-making treaties which arose during this century. And the last, but not indeed the least factor, is the downfall of the theory of the Law of Nature, which after many hundreds of years has at last been shaken off during the second half of this century.

When the nineteenth century opens, the three schools of the Naturalists, the Positivists, and the Grotians are still in the field, but Positivism[84] gains slowly and gradually the upper hand, until at the end it may be said to be victorious, without, however, being omnipotent. The most important writer[85] up to 1836 is Klüber, who may be called a Positivist in the same sense as Martens, for he also applies the natural Law of Nations to fill up the gaps of the positive. Wheaton appears in 1836 with his "Elements," and, although an American, at once attracts the attention of the whole of Europe. He may be called a Grotian. And the same may be maintained of Manning, whose treatise appeared in 1839, and is the first that attempts a survey of British practice regarding sea warfare based on the judgments of Sir William Scott (Lord Stowell). Heffter, whose book appeared in 1844, is certainly a Positivist, although he does not absolutely deny the Law of Nature. In exact application of the juristic method, Heffter's book excels all former ones, and all the following authors are in a sense standing on his shoulders. In Phillimore, Great Britain sends in 1854 a powerful author into the arena, who may, on the whole, be called a Positivist of the same kind as Martens and Klüber. Generations to come will consult Phillimore's volumes on account of the vast amount of material they contain and the sound judgment they exhibit. And the same is valid with regard to Sir Travers Twiss, whose first volume appeared in 1861. Halleck's work, which appeared in the same year, is of special importance as regards war, because the author, who was a General in the service of the United States, gave to this part his special attention. The next prominent author, the Italian Fiore, who published his system in 1865 and may be called a Grotian, is certainly the most prominent Italian author, and the new edition of his work will for a long time to come be consulted. Bluntschli, the celebrated Swiss-German author, published his book in 1867; it must, in spite of the world-wide fame of its author, be consulted with caution, because it contains many rules which are not yet recognised rules of the Law of Nations. Calvo's work, which first appeared in 1868, contains an invaluable store of facts and opinions, but its juristic basis is not very exact.

[Footnote 84: Austin and his followers who hold that the rules of International Law are rules of "positive morality" must be considered Positivists, although they do not agree to International Law being real law.]

[Footnote 85: I do not intend to discuss the merits of writers on special subjects, and I mention only the authors of the most important treatises which are written in, or translated into, English, French, or German.]

From the seventies of the nineteenth century the influence of the downfall of the theory of the Law of Nature becomes visible in the treatises on the Law of Nations, and therefore real positivistic treatises make their appearance. For the Positivism of Zouche, Bynkershoek, Martens, Klüber, Heffter, Phillimore, and Twiss was no real Positivism, since these authors recognised a natural Law of Nations, although they did not make much use of it. Real Positivism must entirely avoid a natural Law of Nations. We know nowadays that a Law of Nature does not exist. Just as the so-called Natural Philosophy had to give way to real natural science, so the Law of Nature had to give way to jurisprudence, or the philosophy of the positive law. Only a positive Law of Nations can be a branch of the science of law.