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Diplomacy and the Study of International Relations/Part 2/Chapter 3

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3

Juristic Literature: Development of International
Understandings as 'Law'

This is a subject of great importance for the student of history. It shows a growth of principles and an accumulation of precedents that have resulted from the clash of interests, the sway of reason, and grinding necessity. Historically viewed, it resolves itself very largely into a study of compacts and of conventional morality.

1 (a). Wheaton (Henry), History of the Law of Nations in Europe and America; from the earliest times to the Treaty of Washington, 1842 (New York, 1845), pp. xiv + 797.

This work was originally written and published in French as a Mémoire in answer to a prize question, submitted for the year 1839, by the Academy of Moral and Political Sciences of the Institute of France: 'Quels sont les progrès qu'a fait le droit des gens en Europe depuis la Paix de Westphalie?' In rendering the work into English, the author made considerable extensions and additions, especially in the introductory part which treats of the history of the European law of nations before the Peace of Westphalia.[1]

​In his Preface Wheaton quoted one of the two or three passages from Austin's Jurisprudence which have been often plunged deep into the controversy whether International Law is really 'law' at all. It has been 'very justly observed', he says, that (quoting Austin) 'international law is founded only on the opinions generally received among civilized nations, and its duties are enforced only by moral sanctions: by fear on the part of nations, or by fear on the part of sovereigns, of provoking general hostility and incurring its probable evils, in case they should violate maxims generally received and respected'. But Wheaton adds that these motives do really afford, even in the worst of times, 'a considerable security for the observance of those rules of justice between states which are dictated by international morality, although they are deficient in-that more perfect sanction annexed by the lawgiver to the observance of a positive code proceeding from the command of a superiour'. His task was to show how the history of the progress of the science of international jurisprudence has been influenced by special compacts that have modified the general rules founded on reason and usage, and adapted them to the various exigencies of human society. Accordingly, he traced the progress of the sense of international right as it is marked not only in the writings of public jurists and in judicial decisions but also in 'the history of wars and negotiations, in the debates of legislative assemblies, and in the texts of treaties, from the earliest times of classic antiquity'. He believed that the general result of the survey was to show 'a considerable advance, both in the theory of international morality, and in the practical observance of the rules of justice among states, although this advance may not entirely correspond with the rapid progress of civilization in other respects'. This field of knowledge, he urged, deserves cultivation, for it is important to 'the jurist, the statesman, and the philanthropist'. ​In a 'Conclusion' (pp. 759–60) the author summed up the general results of his retrospect from the Treaty of Westphalia. The chief of these are the following:

'That the pacific relations among nations have been maintained by the general establishment of permanent missions, and the general recognition of the immunities of public ministers.

'Although the right of intervention to preserve the "balance of power",[2] or to prevent the danger to which one country may be exposed by the domestic transactions of another, has been frequently assumed; yet no general rules have been discovered by which the occasions which may justify the exercise of this right, or the extent to which it may be carried, can be laid down; and that it remains, therefore, an undefined and undefinable exception to the mutual independence of nations.

'The exclusive dominion, claimed by certain powers over particular seas, has been abandoned as an obsolete pretension of barbarous times; the general use of the high seas, without the limits of any particular state, for the purposes of navigation, commerce, and fishing, has been conceded…

'The colonial monopoly; that fruitful source of wars, has nearly ceased; and with it, the question as to the right of neutrals to enjoy in war a commerce prohibited in time of peace.

'The African slave trade has been condemned by the opinion of all Christian nations, and prohibited by their separate laws, or by mutual treaty stipulations between them.

'The practices of war between civilized nations have been sensibly mitigated, and a comparison of the present modes of warfare with the system of Grotius will show the immense improvement which has taken place in the laws of war.

'Although there is still some uncertainty as to the rights of neutral navigation in time of war, a conventional law has been created by treaty, which shows a manifest advance ​towards securing the commerce of nations which remain at peace, from interruption by those which are engaged in war.

'The sphere, within which the European law of nations operates, has been widely extended by the unqualified accession of the American states; by the tendency of the Mahommedan powers to adopt the public law of Christendom; and by the general feeling, even among less civilized nations, that there are rights which they may exact from others, and, consequently, duties which they may be required to fulfil.

'The law of nations, as a science, has advanced with the improvements in the principles and language of philosophy; with our extended knowledge of the past and present condition of mankind resulting from deeper researches into the obscurer periods of history and the discovery of new regions of the globe; and with the greater variety and importance of the questions to which the practical application of the system has given rise.

'And lastly, that the law of nations, as a system of positive rules regulating the mutual intercourse of sovereigns, has improved with the general improvement of civilization, of which it is one of the most valuable products.'

These conclusions are noteworthy as considered lessons drawn from a spacious and careful survey over a long stretch of time; and they are noteworthy for the time at which they were drawn as well as by reason of the learning and diplomatic experience of their author.[3]

The book contains a brief retrospect, in pp. 1–67, on ancient and mediaeval customs and law in international intercourse; pp. 60–7 treat of the Consolato del Mare.[4] Although much ​of the historical exposition has to be checked by the results of more recent investigation, there are parts of Wheaton's work that are still of use to the student of history—the following especially: on conventional maritime law to 1713 (pp. 115–25); on contraband of war in the seventeenth century (pp. 126–45); on the right of visitation and search in the seventeenth century (pp. 145–52); on the dominion of the seas in the same century (pp. 152–61); on the Armed Neutrality of 1780 (pp. 295–306), and on maritime law from 1793 to 1807 (pp. 372–420—the Armed Neutrality of 1800, pp. 397–420); on intervention (pp. 80–2, with Fénelon's statement of the principle with a view to the maintenance of the balance of power, pp. 82–3; pp- 284–9, for 1788–92; pp. 345–66, for 1792–3; and pp. 518–63, for 1820–7[5]—Naples, Spain, Portugal, Belgium, Greece); and on the balance of power (pp. 19–20, 80–1, 266–8, 345–6, 421–2).

(b) Nys, Les Origines du Droit international (1894), pp. v + 414: an illuminating companion to text-books of European history: ch. i, La Notion de la Science du Droit international au moyen âge; ch. ii, La Papauté et l'Empire, including sections on Gregory VII, Innocent III, The Holy Roman ​Empire, Dante and the De Monarchia, and Bartolus, and on the theory of the Empire and independent kingdoms; ch. iii, Le Christianisme et la Guerre; ch. vii, La Guerre contre les Infidèles et contre les Hérétiques; ch. viii, L'Équilibre Européen; ch. xiv, La Diplomatie et les Ambassades permanentes; ch. xvi, La Liberté des Mers; ch. xvii, Les Irénistes, including sections on L'Église et la Trève de Dieu, Le grand dessein de Henri IV, and L'Abbé de Saint-Pierre et la Paix perpétuelle.

(c) Walker, A History of the Law of Nations, vol. i (1899)—From the earliest times to the Peace of Westphalia, pp. xxx + 361: the only volume published. The work supplements Wheaton's History on ancient times and the Middle Ages, and on the times and the teaching of Gentilis and Grotius. Pages 31–137 treat of 'The Evolution of International Law' to the close of the Middle Ages—pp. 31–6 on the Israelites, pp. 37–43 on the Greeks, pp. 43–57 on the Romans,[6] pp. 57–79 on the Roman Empire, and pp. 79–137 on the Middle Ages.

2. Treatises of International Law. It is well for the student of modern history, from at least about the middle of the eighteenth century, to come to know something of works on International Law that were actually used, and were influential, in each age—those, for example, of Vattel (Le Droit des Gens (1758)), of G. F. von Martens (Précis du Droit des Gens moderne de l'Europe fondé sur les Traités et l'Usage (1788)), and of Wheaton (Elements of International Law (1836)).

The Law of Nations Vattel defined as 'the science which teaches the rights subsisting between nations or states, and the obligations correspondent to those rights'.[7] Vattel's general ​standpoint is seen in the sub-title to his work: 'Principles of the Law of Nature, applied to the Conduct and to the Affairs of Nations and Sovereigns'. He is not, however, a pure 'Naturalist': he is one of 'the Grotians' of the eighteenth century by reason of his intermediate position, neither absolutely Naturalist nor pronouncedly Positivist. This intermediate position made the appeal to him the readier, if also somewhat flexible, in the second half of the eighteenth century, and it combined with the clearness of his enunciations to give to his work a high place and long-continued influence in the conduct of diplomacy. For an Appendix to his Remarks on the Policy of the Allies with respect to France (1793), Burke made considerable extracts from Vattel's work, dealing principally with intervention and with the idea underlying 'the political system' of Europe.[8] 'Vattel,' said Fox, in the House of Commons, in January 1794, 'than whom I know of no man more eminent in the science on which he has written, has laid it down as a principle, that every independent nation has an undoubted right to regulate its form of government.'[9] 'My honourable friend,'[10] he had remarked, in words immediately preceding,

'in attempting to prove that the origin of the war[11] was not imputable to this country, treated the established principles of the law of nations with as little respect as M. Genet, the French minister to the United States of America.: My honourable friend said that no dependence could be placed upon the authority of Vattel, with respect to the question of an interference in the internal affairs of other nations, and that arguments might be drawn from his work favourable to either side. He contended that there might exist circumstances of ​such a peculiar nature, as to supersede authority, and preclude the application of established principles. Exactly in the same manner reasoned M. Genet: "I would throw Vattel and Grotius into the sea," said that minister, "whenever their principles interfere with my notions of the rights of nations". Just so my honourable friend seems disposed to treat them whenever they controvert his ideas of those principles which ought to regulate our conduct in the present moment. Thus both, in order to suit their own convenience in departing from the established standard, give their sanction to a new code. I, however, more inclined as I am to adhere to the ancient standard, and to follow established rules of judging, hold the opinions of eminent men, dispassionately given on subjects which they have accurately studied, to be of considerable importance. I consider those opinions formed under circumstances most favourable to the discovery of truth, to be the result of unbiased inquiry, and minute investigation, and therefore entitled to great weight in regulating the conduct of nations. Those writers, in laying down their maxims, were not distracted by local prejudices or by partial interests; they reasoned upon great principles, and from a wide survey of the state of nations, and comparing the result of their own reflections with the lessons taught them by the experience of former ages, constructed that system, which they conceived to be of most extensive utility and universal application. From the system of such men I should be cautious to deviate.'[12]

Appeal to the natural justice on which Vattel founded was more appropriate to the generous mind in politics, and especially to the exercise of that mind in Opposition in the person of Charles James Fox, than to the prudent temper and sagacious outlook of Pitt, the administrator, the pilot of the State amid the storms of war.

An example of the use of Vattel in the official conduct of international relations may be taken from the course of the controversy regarding contraband after the outbreak of the wars of the French Revolution. In April 1795 an Order in ​Council instructed British cruisers to stop and detain all vessels that were laden, wholly or in part, with corn, flour, meal, and other articles of provisions, and that were bound to any port in France, and to send them into a British port in order that such corn and other provisions might be purchased on behalf of the British Government. The question of the legality of this Order was discussed before a mixed commission appointed, under the treaty of commerce and navigation between Great Britain and the United: States in 1794, to decide on the claims of American citizens owing to irregular or illegal captures and condemnations of their property under the authority of the British Government. The Order in Council was supported on two grounds, although it was subsequently revoked. Firstly, it was urged that the Order was issued when there was a prospect of reducing the enemy to terms by famine, and in such circumstances provisions bound to the enemy's ports became so far contraband as to justify seizure of them by Britain, upon condition of the invoice price being paid, with a reasonable mercantile profit added, together with freight and demurrage. Secondly, it was urged that the Order was justifiable on the plea of necessity, since the British people at the time were threatened with a scarcity of the articles directed to be seized. The general law of nations was invoked in favour of the first of these positions, and the chief evidence cited was a passage from Vattel, as follows:

'Commodities that are particularly useful in war and the importation of which to an enemy is prohibited, are called contraband goods. Such are arms, ammunition, timber for shipping and whatever is of service for the construction and armament of vessels of war, horses, and even provisions, in certain junctures, when there is a hope of reducing the enemy by famine.'[13]

​'It is not my disposition', said Sir James Mackintosh, in reference to Vattel and his predecessors,

'to over-rate the authority of this class of writers, or to consider authority in any case as a substitute for reason. But these eminent writers were at least necessarily impartial. Their weight, as bearing testimony to general sentiment and civilised usage, receives a new accession from every statesman who appeals to their writings, and from every year in which no contrary practice is established or hostile principles avowed. Their works are thus attested by successive generations to be records of the customs of the best times, and depositories of the deliberate and permanent judgments of the more enlightened part of mankind. Add to this, that their authority is usually invoked by the feeble, and despised by those who are strong enough to need no aid from moral sentiment, and to bid defiance to justice. I have never heard their principles questioned, but by those whose flagitious policy they had by anticipation condemned.'[14]

It is a relief to the student of history and the appraiser of actual policy to pass from the qualified naturalism of Vattel to the clear-voiced positivism of G. F. von Martens. The change is as bracing as a course of The Federalist after a considerable dose of The Social Contract. It is highly appropriate that the author of the Précis du Droit des Gens moderne should be also the originator of the best Collection of Treaties; and the attitude of mind he brought to bear on his analysis and exposition of the law of nations is almost sufficiently revealed in the full title of his work. The work, which was first published in the year before the outbreak of the French Revolution, ​was entitled Précis du Droit des Gens moderne, fondé sur les Traités et l'Usage.[15] It might well appear, as he admitted in 1801, in the Preface to the second French edition of his work, that the European convulsions resulting from the Revolution in France, and that the triumph of might which these convulsions seemed to make manifest and even to be justifying by events, had cut away the ground in standpoint and reasoning that had been appropriate enough before the bursting of the storm in 1789. Even in the Preface, written in 1820, to the third edition, the author could still, however, record his tribute to the immutable principles of natural law which serves as the basis of international rights. But his work was not rendered obsolete, just because even from its first inception it was designed to be of use in the practice of affairs, and for the author that claim may be made which was put forward for himself by the hard student of fact and observer of forces and power: writing for such as can see his meaning, he deemed it the more feasible course to be taken in tow by the truth showing itself in accomplished facts, than to follow vain imaginings.[16] 'You are a teacher of public law; that will have to be modernized. Does not public law consist to-day simply in the right of the stronger?' Thus was Martens ​addressed by Napoleon when he made his hurried visit to the Congress of Rastatt, the phantom Congress with tragic sequel; and Martens is one of the earliest of the publicists who could disentangle truth from exaggerations and phantasies in the claims of might and conquerors, as far as truth is seen in the working of its way through the accomplished fact, if it give not the lie to reason in a manner too point-blank for rational beings.

The character and scope of Martens' book are very well shown in the general plan of the work as it was stated by him in the Preface to the first edition. It was necessary to take a view of the different nations of which Europe is composed. He examines the question how far and in what light they may be regarded as parts of a whole, and this question could not be determined without considering the effect of a diversity of dignity, power, constitution, and religion. This inquiry he looked upon as the natural starting-point for an understanding of the laws (droits) which custom and treaties have established in Europe, and it forms the subject-matter of the first book of his treatise. Any student of constitutions and politics could to-day append his notes of acquired knowledge and his mental reservations to these preliminary, yet essential, disquisitions. But they are usually practical, terse, and pointed, like these few words on democracies"

'Dans les États purement démocratiques, le peuple, en réunissant en ses mains les trois pouvoirs,[17] est despote; il peut plus que le monarque le plus absolu; il peut annuler sa constitution; et le pouvoir le plus arbitraire exercé sur ses membres se couvre du voile de la volonté de tous.'[18]

His special subject is the positive law of nations—the whole of the rights and obligations actually established between nations. What has become a law in the intercourse of two or three or even the majority of the Powers of Europe, whether ​by treaty or from custom, need not establish rights and obligations for the other Powers, Still, by comparing the treaties that the Powers of Europe have made among themselves, one with another, we are led to certain principles that have been adopted almost universally by Powers that have made treaties on the same subject. Similarly with regard to custom: when a custom has been respected by the majority of the Powers of Europe, especially of the great Powers, its adoption by other Powers becomes easy, if it is at all applicable to them. As much cannot be said of express conventions. Still, it is often the case that a treaty made by two or more Powers serves as a model for treaties of the same kind to be made by other Powers. What is done by one Power in virtue of treaty is observed in others as custom. It may be that in certain matters the rule is founded on treaty for some States, and on custom for others.[19]

The importance assigned by Martens to treaties as an assured, though in itself imperfect, foundation of rights and obligations is the feature of his work that most emphatically commends it to the student of history. He alludes with special approval to those of his precursors, like Leibnitz,[20] who have based their knowledge and reasoning upon treaties and other public acts. His habit of mind and point of view are shown very clearly and strikingly in the classes of books that he holds to be necessary for those who study the positive Law of Nations; and his citation of works[21] still has considerable independent value. The following classes of books are, he thought, necessary: collections of treaties; collections of other public acts;[22] ​political journals[23]; histories and biographies; memoires of ambassadors; systematic treatises, dissertations and miscellaneous writings on the Law of Nations.

On the Balance of Power Martens writes tersely and with pertinence. In all ages nations have looked with jealous eyes on the disproportionate aggrandizement of any one of their number. But it was in the sixteenth century, in the rivalry of the House of Austria and the Kings of France, that the principle had its origin as a considered basis of action, assuming, no doubt, various guises, but without ever entirely losing sight of the end in view.[24] From the close of the seventeenth century Great Britain had been a leader in guarding this principle as though it were one of the accepted principles of the Law of Nations. The principle may be applied also in its particular bearings on parts of Europe or of the world. There may be a balance of power among Powers for the east of Europe, or the west, or the north, or the south. There may be a balance among the States of Italy, or those of Germany. Questions may be raised of a colonial balance in America, and of a maritime balance. It is not merely the acquisition of territory that needs to be watched. There are other ways in which the equilibrium may be disturbed. Alliances between powerful States may compromise the existing security, or a State which ​has served as a useful counterpoise may be so enfeebled as to affect the situation not less than the aggrandizement of one of the Powers.[25]

The effect of the Wars of the French Revolution and of Napoleon on the authority to be accorded to a law of nations was such as to suspend the growth of international understanding without destroying the idea of balance. Two opinions expressed about the middle of the nineteenth century may be taken as typical of the judgements of men of learning and of thought and of wise and hopeful outlook after the effects of the convulsions of twenty-five years had spent themselves.

'La révolution française et l'empire,' says M. Ch. Vergé, the editor of Martens's Précis du Droit des Gens moderne,[26] 'et les guerres d'opinion et de rivalité politique qui signalèrent cette période d'histoire moderne suspendirent les progrès de la conciliation européenne, sans ruiner l'idée de l'équilibre. Plus d'une fois, l'aveuglement des passions entraîna des violations du droit des gens: l'assassinat des plénipotentiaires français à Rastadt, le blocus continental, la prédominance menaçante de la France et son abaissement exagéré par les rancunes et les colères survivant à la chute de l'empire étaient de manifestes dérogations aux règles mêmes de la guerre légitime; mais, dès 1814, malgré les ressentiments issus de vingt-cing ans de lutte, on s’appliqua a raffermir par des traités les principes du droit et à assurer le maintien de la paix par une sorte de contrat européen. Le temps devait compléter cette œuvre, il la rectifiera progressivement.'

'The danger of universal monarchy,' wrote Wheaton in his History of the Law of Nations,[27] 'once, perhaps, vainly ​apprehended from the ambitious designs of the houses of Austria and Bourbon, was at last realized from the genius of one man, who wielded with unexampled energy the vast natural resources of France, whose power of aggression had been fearfully augmented by revolution and conquest. This long protracted and violent struggle was too often marked in its course by the most flagrant violations of the positive law of nations, almost always accompanied, however, by a formal recognition of its general maxims, and excused or palliated on the ground of overruling necessity, or the example of others justifying a resort to retaliation. The mighty convulsion, in which all the moral elements of European society seemed to be mingled in confusion, at last subsided, leaving behind it fewer traces of its destructive progress than might have been expected, so far as regards a general respect for the rules of justice acknowledged by civilized communities in their mutual intercourse.'

Of Henry Wheaton's Elements of International Law little need be said. It is a standard work, on which the author's History may be taken as the best commentary. The work was published first in 1836 at Philadelphia and at London. It was published again at Philadelphia in 1844. Later it was issued in French, at Leipzig in 1848, and at Paris in 1852 and 1853. The first English edition proper was published at London in 1878; the fifth[28] was published in 1916. In the words of a German appreciation of Wheaton as the historian of International Law, the author united the accomplishments of a public jurist and of a practical diplomat—of the school of Franklin and Jefferson—to those of a scholar with an established ​reputation.[29] Similar in its content and spirit is the appreciation of a highly qualified English authority of to-day. In Wheaton's Elements, says Sir Frederick Pollock in an Introduction to the fifth English edition of the work, those principles that make up the Law of Nations and that, 'down to the present war,' have been 'fairly well observed by most nations and ostensibly respected by all, in spite of lacking any defined sanction', have been expounded 'on a more spacious historical scene and with more detailed illustration than can be found in most modern text-books. Wheaton stands for the opinions received or allowed among the best instructed publicists during the period following the Congress of Vienna, sometimes called the Forty Years' Peace.' He had the qualifications of 'a good scholarly lawyer of the first generation of American independence'; and these, added to his combination of forensic, judicial, and diplomatic experience, 'gave him almost unique advantage in handling this subject'.[30]

Of more recent works on International Law only three need here be mentioned—that of Sir Robert Phillimore, that of Sir Travers Twiss, and that of Mr. W. E. Hall. Phillimore's Commentaries upon International Law—a work in four volumes—appeared first in the years 1854–61. A third edition was published from 1879 to 1889. In a Preface, repeated from the first edition, the author gives a sketch (pp. xv–xxvi) of the history of International Law, and proceeds to a history (pp. xxvi–l) of International Jurisprudence in England. For the work of Grotius he claims that 'no uninspired work has more largely contributed to the welfare of the Commonwealth of States. It is a monument which can only perish with the civilized intercourse of nations, of which it has laid down the master principles with a master's hand, Grotius first awakened the ​conscience of Governments to the Christian sense of international duty' (p. xxiv).

For the student of history, and of International Law in its historical development and historical aspects, the following parts of the Commentaries are especially useful: (1) vol. i, pt. i, ch. vi, pp. 45–61 on Treaties; vol. i, pt. iii, ch. vi, pp. 257–62 on the Narrow Seas, as distinguished from the Ocean (with references to the contentions of Grotius and Selden); vol. i, pt. iv, ch. i, pp. 553–638 on the Principle of Intervention, and more especially, in pp. 574–614, on the Balance of Power as a Corollary of the Right of Self-Defence, with historical allusions; vol. ii, pt. viii, on the International Status of Foreign Spiritual Powers, especially on the Pope, pp. 343–540, and more especially ch. v, pp. 401–14, the International Status of the Papacy between the period of the promulgation of the canon law and the Council of Trent, and ch. vi, pp. 415–26, from 1563 to 1870.

The author interprets in prudent terms the doctrine of the Balance of Power.[31] He lays stress on the Treaty of Utrecht as marking the time from which 'the recognition of the system of balance' may be dated; and the language of the treaty can be cited as evidence of the importance ascribed to the restoration of the balance. 'The treaty was made ad conservandum in Europa equilibrium.[32] The doctrine 'certainly is liable to abuse, but, fairly explained, means no more than the right of timely provision of a probable danger'.[33]

The Law of Nations of Sir Travers Twiss was published in 1861–3, in two volumes, of which the first treats of the rights and duties of nations in time of peace, and the second of their rights and duties in time of war. A second edition of the second volume appeared in 1875, and of the first volume in ​1884. The second edition of the volume on War contained (pp. xix–xliv) 'An Introductory Juridical Review of the Results of Recent Wars' and an Appendix (pp. 511–608) of Treaties and other documents—the Congress of Paris, 1856 (pp. 511–18), the Declaration of Paris, 1856 (pp. 518–23)[34]; the Convention of Geneva, 1864 (pp. 524–36); the Convention of Geneva, 1868 (pp. 536–57);[35] the Declaration of St. Petersburg, 1868, 'relative à l'interdiction des balles explosibles en temps de guerre' (pp. 557–61);[36] Protocols of the Conferences of London, 1871 (pp. 561–78); Treaty of London, 1871 (pp. 578–89); Convention of London between Russia and Turkey, 1871 (pp. 589–93); the Foreign Enlistment Act, 1870 (pp. 594–608).

A very fine tribute is rendered to Grotius in the Introduction to the first volume. 'It was an apt remark on the part of his Excellency Kuo-Taj-in, the first Envoy-Extraordinary and Minister-Plenipotentiary accredited from China to the Court of St. James, that he found the European Law of Nations to be a "very young Law"; but he also observed that since the age of Grotius wars had been less frequent in Europe, and less sanguinary.' The concluding words must now be summarily dismissed. But the appreciation by Sir Travers Twiss himself is still valid. The treatise of Grotius, he tells us, was subjected to much opposition during its author's life-time, and both in England and on the Continent there have been critics who have objected to both the method and the doctrine of Grotius. They have maintained that the maxims which he inculcates as founded on the equality of nations 'went to destroy the three cardinal principles of the Civil Law, often quoted as "the Ulpianic precepts", to wit, "Honeste vivere, Alterum non ​laedere, Suum cuiquetribuere"'. Further, it has been contended that the doctrine of a Law of Nations, as resting upon the common agreement of mankind, was merely an empty fiction, to which nothing corresponds in fact. But, says Sir Travers Twiss, Grotius did not intend to set up a rule like that which theologians have termed the Golden Rule of Vincentius Lirinensis, 'Quod semper et ubique et ab omnibus'; and he quotes the words of Grotius himself:[37] 'There are two ways of investigating the Law of Nations. We ascertain this Law, either by arguing from the nature and circumstances of mankind, or by observing what is generally approved by all Nations, or at least by all civilized Nations. The former is the more certain of the two, but the latter will lead us, if not with certainty, yet with a high degree of probability, to the knowledge of this Law; for such an universal approbation must arise from some universal principle, and this principle can be nothing else than the common sense or reason of mankind.'

Two opinions have already been cited regarding the effects of the upheavals of the era of the French Revolution and Napoleon. Even more emphatic in its favourable view is the estimate of Sir Travers Twiss. It is not too much to say, he remarks, that 'in accordance with the maxim "La guerre enfante le Droit", the twenty years of almost uninterrupted warfare, during which the First Napoleon endeavoured to erect an Empire, only second to that of Charlemagne, on the foundations of the French Republic of 1793, evoked a spirit of combined action among the Nations of Europe, cemented by a carefully considered system of General Treaties, the outcome of which has been an European Concert of Public Law'. The result has been that each State, without surrendering or ignoring its special interests, has also interests that belong to it in common with the general body of States. 'The ​natural independence of the individual States has been, in certain matters, subordinated to the general welfare of the European community.' This result has not been brought about without involving from time to time departures from established usage. The method of achieving the result has been that of consultations among the leading European Powers assembled in Congress, and recording in the Protocols of their Conferences the principles upon which their conclusions have been based, to which, moreover, it has been usual to invite the adherence of the Powers not themselves represented at the Congress.[38] When Sir Travers Twiss, writing in 1863, fixed his mind on War and the Rights of War, a like spirit of optimism prevailed with him. History, he said, in its relation to the History of War, may truly be regarded as Philosophy teaching by example; and the wider and more complete the historical survey the more irresistible will be the conclusion, that 'the employment of Force on the part of Nations in the prosecution of Right against other Nations has become subject to Rules, which are in accordance with Reason, and have the Common Weal for their object'.[39]

The work of Sir Travers Twiss has lately been described as 'a necessary book for the student';[40] and the fact that the judgement comes from one who has himself been busied with diplomacy, taken together with the publication of a French translation of the book twenty years ago, gives force to the estimate. We are concerned here more especially with such parts of the author's subject and his treatment of them as are ​of value to the student of history. Attention may be directed particularly, in the volume on Peace, to ch. iii on National State-Systems of Christendom, ch. iv on the Ottoman Empire, ch. v on the Kingdoms of the Lower Danube, and ch. xiii on the Right of Treaty; and in the volume on War to ch. v on Rights of a Belligerent on the High Seas (with an interesting historical retrospect),[41] and ch. vii on Contraband of War.

Of Mr. W. E. Hall's Treatise of International Law, published in 1880, it has been said by the author of a recent work of distinction on the subject that it 'at once won the attention of the whole world; it is one of the best books on the subject that have ever been written'.[42] The author's attachment to facts, the distance by which he is separated from the deductive and transcendental school of writers on the subject, and the soundness of his judgement[43] make his work a natural and serviceable ally of the historian and of the student of policy. An Appendix on 'The Formation of the Conception of International Law' may well be taken as a starting-point by the reader of Wheaton's History or of substitutes for that work. For the historical student the following parts of the book are of ​value, the pages being those of the sixth edition,[44] published in 1909: pp. 1–16, on the views held as to the origin and nature of International Law (with foot-notes, pp. 2–3), and on the value of treaties (how far are they expressive of a movement of thought?); pp. 140–51, on the extent to which the sea can be appropriated (a consideration of facts and conditions from the sixteenth to the nineteenth century); pp. 337–52, on the interpretation of treaties, their effects, execution, and extinction, with historical illustrations; pp. 373–4, on wars of the seventeenth and eighteenth centuries 'begun' without 'declarations'; pp. 571–87, on the growth of the law affecting belligerent and neutral States to the close of the eighteenth century; pp. 631–4, on 'the rule of the war of 1756', and its extension in 1793; pp. 638–48, on contraband from the seventeenth to the nineteenth century; pp. 705–6, with foot-notes, on blockade; and pp. 715–22, on neutral ships and enemy goods. A valuable feature of Mr. Hall's work is the considerable number of references it gives to State Papers.

The standard work on cases in International Law is that of Martens,[45] Causes célèbres du droit des gens,[46] first published in 1827. Mr. Pitt Cobbett's Leading Cases and Opinions on International Law[47] is well arranged, but at only a few points is of value to the historical student: pp. 144–8, on the Silesian Loan[48]—a lucid exposition; pp. 292–5, on neutral trade from ​about 1800 to 1856; pp. 330–3, on the rule of 1756 (Sir William Scott's judgement in the 'Immanuel' case, with a very clear note on the rule); and pp. 330–40, on the doctrine of continuous voyages (cases of 1806 and 1863).

The connexion between international law, diplomacy, and the government of the society of nations has been thus expounded in the course of a concise and highly useful essay on 'The Modern Law of Nations and the Prevention of War':[49] 'Official, judicial, and other learned persons who cannot conceive authority divested of official sanction have gravely pointed out that Grotius and his successors, not being legislators, could not make law. More than twenty years ago, Sir Henry Maine gave the right answer: "What we have to notice," he said, "is that the founders of International Law, though they did not create a sanction, created a law-abiding sentiment. They diffused, among sovereigns, and the literate classes in communities, a strong repugnance to the neglect or breach ​of certain rules regulating the relations and actions of States. They did this not by threatening punishments, but by the alternative and older method, long known in Europe and Asia, of creating a strong approval of a certain body of rules." To put it in a slightly different way, they were able to mould the custom of princes and their advisers while it was still plastic; and it took form as a real though imperfect customary law, not a mere assemblage of moral precepts. Ever since the time of Grotius these questions have been treated as belonging to jurisprudence, not to theology or casuistry, and have been handled in the manner of legal argument and not of merely moral persuasion. It may be and often is disputed what is the true rule, or how it is to be applied in particular cases; but the rule, ascertained or not ascertained, is conceived as an ordinance of justice, and not a counsel of perfection. Beyond the domain of positive duty there is a region for governments in the society of nations, as for individual citizens within a State, where rights may be exercised in a more or less friendly spirit, with greater or less consideration for the convenience of others, equitably or with insistence on the letter of the bond, stiffly or with readiness to give and take; and no formal ground of complaint is afforded by conduct which, though it may be displeasing or barely civil, is still within the scope of lawful discretion; as in municipal jurisdiction an action will not lie against a man for many things which do not become the character of an amiable neighbour. In this region the skill and tact of diplomatists finds much of its every-day work, and by no means the least important.'

Footnotes

  1. ↑ Only one edition of the work in English was published, and the volume is now rare. Several editions were published in French—the date of the fourth being 1865 (Leipzig, 1865, 2 vols., pp. x + 403, and pp. vi + 410). A useful article on Wheaton's History was written by Nassau Senior for the Edinburgh Review, April 1843, reprinted in his Historical and Philosophical Essays (1865), i. 138–275. It contains some notes of dissent from Wheaton.
  2. ↑ The author's conclusion regarding the application of the right of intervention to preserve the balance of power is expressed less concisely in the fourth French edition of his work (Leipzig, 1865), ii. 405–8.
  3. ↑ Wheaton wrote his Preface to the English edition of his work at Berlin in November 1843. He was Minister of the United States at the Court of Berlin.
  4. ↑ See Pardessus, Collection des lois maritimes antérieures au dix-buitième siècle (6 vols., Paris, 1828–45)—a work cited by Wheaton, but not completed at the time he wrote; also Pardessus, Lois et coutumes de la mer, ou Collection des usages maritimes des peuples de l'antiquité et du moyen âge (2 vols., Paris, 1847)—a reproduction of chapters 1-4 of the larger work together with the additions made to these chapters in the concluding volume of the first Collection. Wheaton's interest in maritime law had been shown as far back as 1815, when, at the age of thirty, he published a Digest of the Law of Maritime Captures or Prizes. The subject was of engrossing interest to his fellow-citizens as well as to European States, and had called forth a number of works, useful to the student of history, since 1800, the year of the second Armed Neutrality—works of which a good representative is Ward's Treatise of the relative Rights and Duties of Belligerent and Neutral Powers in Maritime Affairs, in which the Principles of Armed Neutralities … are fully discussed (1801). For the Armed Neutrality of 1780, see Martens, Recueil de Traités, vol. iii, and for that of 1800, vol. vii.
  5. ↑ See also Stapleton, Intervention and Non-Intervention of Great Britain, 1790–1865 (1866), and Reddaway, The Monroe Doctrine (1898); Wheaton's Elements, fifth ed., 90–125 (Monroe Doctrine, 97–101).
  6. ↑ See Phillipson, International Law and Custom of Ancient Greece and Rome.
  7. ↑ The Law of Nations … from the French of Monsieur de Vattel, by Joseph Chitty (1834), liii. Heeren (The Political System of Europe, transl., Oxford, 1834, i. 11, foot-note) said of Vattel's Le Droit des Gens that it 'has obtained the highest authority among practical statesmen'.
  8. ↑ Works (1823), vii. 201–15.
  9. ↑ Speeches (1815), v. 256.
  10. ↑ William Windham.
  11. ↑ War with France, February 1793.
  12. ↑ Speeches, v. 155–6.
  13. ↑ Book iii, ch. vii, § 12. Wheaton (History, 380–1) describes the passage as a 'loose' one, a 'vague text'. Wheaton shows the use to which Vattel was put on the question of Saxony at the Congress of Vienna, and on the question of the annexation of Genoa to the Kingdom of Sardinia in Sir James Mackintosh's speech in the House of Commons, April 27, 1815: History, 426–7, 490–1; Mackintosh's Miscellaneous Works (1851), 703–4, and foot-note.
  14. ↑ Speech, April 27, 1815.
  15. ↑ The full title is not given by Vergé in his edition (Paris, 2 vols., 1858). The work was developed from a work written in Latin by the author, and published in 1785. An edition in German, translated by the author, appeared in 1796; a second edition in French in 1801, a third in 1820, a fourth in 1831, with notes by Pinheiro-Ferreira. The edition of M. Ch. Vergé is the fifth in French. An English translation made by William Cobbett—in parts a paraphrase—was published at Philadelphia in 1794, and, according to Cobbett himself, was subscribed to by the President, the Vice-President, and every member of the Congress ('Advertisement to the first London edition'). Cobbett's translation was published in England in 1802 for the first time; a fourth edition appeared in 1829.
  16. ↑ The Prince, ch. 15.
  17. ↑ Legislative, executive, judicative
  18. ↑ Book i, ch. iii, § 28.
  19. ↑ Especially Introduction, § 7, vol. i, pp. 47–8, of the ed. of 1858.
  20. ↑ Codex Iuris Gentium Diplomaticus (1693).
  21. ↑ i, pp. 68–76, ed. 1858. See, further, the useful Bibliographie raisonnée, ii, pp. 385–436.
  22. ↑ e.g. Lamberty, Mémoires pour servir a l'histoire du dix-huitième siècle, contenant les négociations, traités, etc., concernant les affaires d'État, for the first half of the century, 14 vols. (1724 sqq.).
  23. ↑ e.g. Die europäische Fama: Le Mercure historique et politique; Staatsarchiv.
  24. ↑ The following works had influence in shaping thought on the principle of a balance down to the outbreak of the French Revolution: Le baron dell' Isola, Le bouclier de l'État et de justice, 1667; Lehmann, Trutina Europae, 1710; Kahle, De Trutina Europae, quae vulgo appellatur 'die Balance', praecipua belli et pacis norma, 1744; Justi, Chimaire des Gleichgewichts von Europa, 1758; Hertzberg, Dissertation sur la véritable richesse des États, la Balance du commerce et celle du pouvoir, 1786.
  25. ↑ Martens, Bk. iv, ch. i.
  26. ↑ Edition of 1858, i. xvii, in a dissertation, pp. i–lvii, on 'Le Droit des Gens avant et depuis 1789'.
  27. ↑ p. 422.
  28. ↑ Edited by C. Phillipson. The historical portions have been retained and expanded. Examples of conduct from recent wars have been added, and the references to cases have been increased. It is necessary for the unwary reader to distinguish between the original text and the editor's additions.
  29. ↑ See Kellen, Henry Wheaton (Boston, 1902), p. 45.
  30. ↑ See pp. xxxix–xliv of the fifth English edition (1916) of the Elements.
  31. ↑ See especially Commentaries, vol. i (3rd ed.), pp. 580, 581, 614.
  32. ↑ Koch, ii. 92.
  33. ↑ Commentaries, i. p. 580.
  34. ↑ For the proceedings of the Congress and the treaties resulting, see Martens, Nouveau Recueil général des Traités, xv, pp. 700–94.
  35. ↑ Martens, xviii, p. 607.
  36. ↑ Martens, xviii, p. 450.
  37. ↑ Bk. i, ch. 1, § 3.
  38. ↑ Introduction to second edition of the volume on Peace, pp. xxx–xxxi. For an appreciation of the 'high vocation' of the diplomatist, and of the purpose and ideal in the foundation of the Chichele Professorship of 'International Law and Diplomacy', see pp. xxxvi–vii.
  39. ↑ Preface to the first edition of the volume on War.
  40. ↑ Satow, Diplomatic Practice (1917), ii. 371.
  41. ↑ For example, § 74 on the office of Admiral, § 75 on Admiralty jurisdiction of Nations, § 76 on Customs of the Sea, and §§ 83, 84, 85 on ‘systematic departures from the Rule of the Consolato del Mar'.
  42. ↑ L. Oppenheim, International Law (1907), vol. i, p. 93. Mr. Oppenheim's work is, on the whole, a little more easily read than Hall's. The following parts have value for the historical student: vol. i (2nd ed., 1912), pp. 45–59 on development of international law before Grotius, and pp. 59-83 on development after Grotius; pp. 188–99 on intervention (the Monroe Doctrine, pp. 196–9); pp. 315–20 on freedom of the open sea; vol. ii, pp. 347–60 on neutrality, from the Middle Ages. An Appendix gives the texts of the Declaration of Paris, 1856; the Geneva Convention, 1906; the Final Act of the Second Hague Peace Conference, 1907; the Declaration of London, 1907, including the Report of the Drafting Committee.
  43. ↑ Satow, Diplomatic Practice, ii, p. 371.
  44. ↑ Edited by Atlay, pp. xxiv + 768.
  45. ↑ Charles de Martens, nephew of G. F. von Martens, and author of Le Guide diplomatique.
  46. ↑ 2 vols. (Leipzig), 1827, and Nouvelles causes célèbres, 2 vols., 1844. A second edition of the work was published in five volumes in 1858–61.
  47. ↑ 1885; 2nd ed. 1892, pp. xxiv + 385. There is a section on the Prussian diplomatic service at the opening of the fifteenth chapter ('Reconciliation of George II and Frederick the Great. Negotiations through the Duke of Brunswick, and then through Michell').
  48. ↑ Martens, Causes célèbres, ii. 97. See also Sir Ernest Satow, The Silesian Loan and Frederick the Great, 1915, pp. 448. There is a chapter of twenty pages on 'Prize Law in the first half of the Eighteenth Century'.
  49. ↑ By Sir Frederick Pollock in The Cambridge Modern History, vol. xii (1910), ch. xxii, pp. 711–12. The chapter treats of the Law of Nature and the Law of Nations, of the influence of chivalry and the Church, of Gentili, of Hooker, of the achievement of Grotius, of (1) the authority of writers, (2) treaties and conventions, and (3) the embodiment of general opinion in the usage of nations, of arbitration, the Hague Conferences, the Concert of Europe, and 'the ideal European system'. 'It would seem that the formation of any such system can be looked for only when the political institutions and ideas prevailing in the chief nations of the world have become much more nearly uniform than they are; and it is far from clear that the present tendency is to approximate, for the fashion—a passing one, let us hope—is rather to exaggerate national and racial differences' (p. 720).
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