Open main menu
This page needs to be proofread.

states elbowing each other in their daily contact. It was there that grew up the institution of passports, the distinction between armed forces and civilians, international comity, and in fact the very notion that states have an interest in the observance of law and order among them. In the same way the active commercial intercourse in the Mediterranean led, in the common interest, to the development of rules of the sea in time of peace, and later to others in time of war.

In the north of Europe, again, out of the active commercial intercourse among the Baltic and North Sea communities grew rules of the sea in the same common interest. It was ggi? the Thirty Years' War, with its revolting cruelty, wa, - which brought out the contrast between the more humane practice of war as an art in Italy and the mere bludgeonry which prevailed in the brutal struggle which disgraced the first half of the 17th century. The brutality of the struggle turned thinkers' attention to the need of formulating rules for the protection in time of war of non-combatants and the innocent subjects of absolute sovereigns, the treatment of the sick and wounded, the prohibition of wanton pillage and the other horrors which shocked the awakening conscience of northern Europe. It was the starting-point of the age of text-books. The first effective work, the one which was the first to influence sovereigns and statesmen, was Grotius's De jure belli ac poets gmt, ” (Paris, 162 5), which practically exhausted the theoreti° cal arguments in favour of the new subject. Nobody has in fact since brought to light any new conception of the foundations of international law. An exhaustive and masterly treatise having been published, no further subsequent treatise was necessary to show what all men were beginning to feel. He sublimated the feelings of his age, and having arrived at the pure substance, the work of proving the need of his subject was disposed of for all time. Pufendorf (1632-1697), who, in the sequence of effective text-writers succeeded Grotius Puf - ' .

dar?" endeavoured to base international law on an ethical basis accepted by all peoples without necessity for a common creed or standard of morals, but it is doubtful, whatever may have been the extent to which he stimulated the study of jurisprudence, whether he did much in advancing the practical development of the law of nations. His book De jure noturae et gentium (1672), as its name indicates, based international law on what he called the law of nature, a subject which has much exercised the minds of jurists searching for an ethical basis for existing law.

The scientific mind of Leibnitz (1646-1716) revolted against this theoretical and doctrinaire tendency of Pufendorf and other Le, bn, ¢z writers, who were following with feeble tread in the giant footsteps of Grotius. He saw that the practice of nations was taking a course dictated by the current moral standards of civilized society, and that the philosophizing of the text-book writers was leading them away from that actual practice which they should use as data for their conclusions. Natural science, moreover, had taught him the risk of theorizing on imperfect data, and while writing a history of Brunswick it occurred to him that treaties and diplomatic documents generally were the substances and tests of the publicist's laboratory. His codex juris gentium diplomatious (1693-1700) gave a more precise direction to speculations on the subject. The next great writer of authority united all the qualities of a practical lawyer and jurist. This was Bynkershoek (1673-Bynkeh 1743). He was the first writer on international law shock who dealt with public maritime law as a matter demanding special treatment and involving a set of principles not called into action in territorial warfare. A magistrate administering the law in a great commercial country, whose interests were on or across the high seas rather than within the narrow European limits of Holland, Bynkershoek, like Leibnitz, searched for his data in the actual practice of nations in their intercourse with one another. He applied his clear legally trained mind to deriving principles from practice instead of endeavouring to build up a practice on abstract principles. It was he who first generalized the different isolated usages which had grown up at different spots in northern Europe in the interest of maritime defence, and evolved from practice the principle that dominion seawards was limited to the extent to which it was possible to enforce it (cannon-shot range), a principle which not only created the legal institution of territorial waters, but has since been imported into other branches of International Law, and has indirectly influenced the suppression of fictitious blockades and more recently of fictitious occupations of territory. A contemporary of Bynkershoek was Christian de Wolff (1679-1754), a philosopher, mathematician, theologian, lawyer and disciple of Leibnitz. Wolff's great work on the Institutions of the Low of N ature and N ations is a learned ghjfn and accurate treatise drawn from all the well-known sources of knowledge, and, just as Grotius based his demonstrations on the then imperfect knowledge of public events of his time, Wolff based his on the more accurate sources of information which had grown up under the influence of Leibnitz, and created a connected system out of the scattered fragments available. But his book was written in Latin at a period when scholarship had declined, and its influence was only felt after Vattel (1714-1767) wrote his Droit des gens, on principles de la loi noturelle oppltquées ci to conduits et aux a g(li1'€S des nations et des souverotns (1758). His book had all the charm, although Vattel was a Neufchatelois, of the French writers of his time, and Vatteh he it was who popularized the study of International Law. His book was based chiefly on the work of Wolff, but in it he gave what was best amongst his predecessors without attempting to add anything original of his own. It became the handbook of statesmen and jurists, and has never ceased to be quoted by them down to the present day.

But the opinions of jurists in International Law can have little more than the value of criticism and co-ordination. They have seldom served to make law, though they have the weight of all statements made by those who have made a special study of any branch of law, as to what they had gathered to be the existing practice at the time when they wrote, or as to the trend which they showed that practice might be taking. Great lawyers and writers like those we have mentioned, and such as Lord Mansfield, Sir William Scott, Chief-Justice Marshall and others, have done the work of classifying facts, deducing conclusions from them and connecting rules with psychological and ethical motives, and have thus sent a current of higher intelligence through the subject which has raised it to its present methodical form. Still International Law remained a wide field for controversy. Authors were agreed on general principles, but when these general principles were applied in practice, the shortcomings of unwritten usage often caused as much difficulty as that which the appeal to principles was intended to overcome. What may be called the first enactment of rules of International Law was the Declaration of Paris of 1856, but the great work of codification, or rather of reducing into writing Hague and

the rules which had been floating as an unwritten law London in the conscience of Europe, was undertaken by the C°"ff1" eDCE§ »

Hague Conferences, which may be said to be and to have created an entirely new factor in the domain of International Law. Two of the conventions adopted in 1899 completed work which had already been commenced long before, viz. those on the usages of war and on the adaptation of the Geneva Convention to naval war. The third established methods for the pacific settlement of international difficulties, including the formation of the Hague Court of Arbitration. Recourse to'the latter was purely optional, but the other two conventions have been absorbed into the national law of the ratifying countries, and thus have also the domestic sanction states give to their own laws. The work of the Conference of 1907 was of a much wider and more exhaustive character than that of 1899. It comprised, besides revised conventions on the matters dealt with in 1899, new Conventions on the following subjects: Opening of hostilities; Position in naval war of enemy's merchant ships at beginning of hostilities; Conversion of merchant vessels into warships; Rights and duties of neutral states in naval

war; The laying of automatic submarine contact mines; The