CHAPTER XV.

LAW AS BETWEEN STATES.

In the case of national, or, in the wider Roman sense1, civil law-i. e. the rules of conduct obtaining between members of one nation, state, or political society-I have endeavoured to shew the necessity of recognising, as ultimate sanction, the general disapproval of the society and its consequences. A similar general disapproval is of primary importance in the law which I shall now briefly consider, of which it constitutes the only proper sanction.

International Law may be briefly defined as the aggregate of rules which habitually regulate the conduct of civilised nations, or states, towards one another. It is a matter of fact and practice and, as such, to be at once distinguished from the principles of justice which ought to regulate the mutual relations of nations in the opinion of this or that authority. Nor, on the other hand, should we limit a definition, which is to include all rules really efficient, by requiring an express acknowledgement on the part of states, Christian or otherwise *.

1 Above ch. 14. p. 173. ·

2 This is very nearly the definition of Halleck (International Law ch. 2. §1). "The rules of conduct regulating the intercourse of states."

3 See Wheaton, Elements Pt. 1. Ch. 1. § 1. It is true, however, that Wheaton is there speaking of the authority from which International Law is derived.

"The

4 Woolsey, Introduction to the Study of International Law. § 5. aggregate of the rules which Christian States acknowledge as obligatory in

C. J.

12

Again, it is historically true that the actual rules at present existing on this subject have been mainly, if not entirely, developed among Christian states: but it seems to be simply a matter of general policy and expediency, independent of religious belief, whether non-Christian states adopt these rules or not. I therefore prefer the term civilised, if any adjective at all be needed. It does not really add any distinctness to the definition: for I shall not attempt to define civilisation, beyond the fact that, for the present purpose, adoption of the existing rules would be taken as prima facie evidence of it.

International law ancient and modern. International law is mainly a matter of modern times, but a few remarks are necessary upon the slight traces of similar matter which we find in antiquity, if only to explain occasional expressions of modern writers.

Amphictionies. The Greek Amphictionies, of which there were many", were very early associations of small tribes for religious purposes. Their history bears rather upon the origin and developement of a state, than upon the relations of fully developed states to one another. The special obligations entered into by the Neighbours, dwelling round some central temple', under religious sanctions backed by very serious secular penalties, were recorded and appealed to in

their relations to each other and to each other's subjects." Bluntschli requires recognition, Anerkennung, but this need, I think, only be virtual. (Das moderne Völkerrecht 1. 1. cf. note 1. "Bewährung im Völkerleben"). Calvo (Droit International 1. 1. 1.) understands, by International Law, la réunion des règles de conduite observées par les diverses nations dans leurs relations entre elles.

5 See Woolsey 1.c. and Bluntschli 1. §§ 5, 6. Story and Vattel speak of "Civilised nations" in this regard. See Halleck (Int. Law 2. §§ 8. 9). 6 Grote History of Greece, Pt. 2. ch. 2.

7 ȧupikтloves, Umwohner. Curtius Grundz. 157.

8 Aeschines de falsa legatione, p. 279.

later times: but then, far from habitually regulating the conduct of states to each other, they merely served as pretexts for aggression".

Fetiales. The Roman jus fetiale is spoken of by Cicero as entirely concerned with the conduct of a nation towards a regular and legitimate enemy 10. Varro "makes the fetiales deal with the regular commencement of war and with the conclusion of treaties of peace. Their name imports either treaty-making or embassage 12.

That the office was a very old one appears from the formulæ preserved by Livy 13, though of course we need not accept its institution by Tullus or Ancus, nor its derivation from the apocryphal race of Fair-dealers 14. These formulæ turn on demands for public restitution, declarations of war, and conclusion of treaties. They indicate a common worship-not impossibly an ancient religious league of populi somewhat similar to the Amphictiony 15.

The office of fetialis occurs also outside the possible limits of any Latian league1; but this is not the only case where Latin institutions are found independently developed elsewhere in Italy". The office, or at least the usages connected with it, were retained, with the Roman tenacity of formulæ, to the close of the Republic, when Rome had long swallowed up all the little nationalities amongst which a jus

9 Cf. Aeschines contra Ctesiphontem, pp. 407–411. &c. 10 Cicero de Officiis, 3. 29. 108.

11 Varro de lingua Latina, 5. 86.

12 The derivation from foedus is, at least, more likely than that from fidus (Varro's). If we connect the word with fateor, the e of fetialis is not easy to account for, which might come from the oe of foedus. Corssen however (1. 421) makes the Fetiales Sprecher, Gesandter, from the root of fateor, &c. 13 Livy, 1. 24, 32.

14 Aequicoli. Livy 1. 32. 5. See Seeley, Livy, Bk. 1. p. 45. 15 The temple on the Alban Mount, and the extant road to it, might remount to almost any antiquity. The former is, now, totally destroyed, thanks to the Cardinal Duke of York.

16 Livy 8. 39; 9. 1.

17 Pontifices are another instance.

fetiale originally obtained. In this last stage, such usages were, it would seem, merely a matter of self-regarding etiquette, with perhaps some slight deference to home religious feeling: little or none, I imagine, to the independent rights of foreign nations 18.

Jus gentium. The philosophical idea of a jus gentium, or law of all nations, might have been expected to extend to rules regulating the conduct of nations towards each other: and some vague expressions of Cicero go as far. But the term jus gentium, when used in anything like an exact sense by Roman jurists, probably did not include what we mean by International Law at all, while it certainly did include all that was, or was supposed to be, common to different systems of national law 19. In fact, the rules themselves, of what is called International Law, are, as is shewn by any historical sketch of the subject, almost entirely a developement of modern times 20.

Name of International Law. Zouch is considered to have been the first who invented the term jus inter gentes to mark off the law between nations from the other law common to nations 21. And this expression, Englished into "International Law" by Bentham, is current at the present day".

18 Livy 30. 43. See however Varro, de vita populi Romani, apud Nonium Marcellinum p. 529, s. v. Faetiales.

19 See the distinction already drawn by Grotius between the jus gentium of the Roman jurisconsults and the jus gentium, properly so called, as relating to the mutual intercourse of nations. De Jure &c. 2. 8. 1. with Becmann's note on 1. 1. 14. See also the chapter on jus gentium, below.

20 Kent's International Law (Abdy) ch. 1. &c. &c.

21 Zouch wrote his Jus Feciale in 1650. He died 1660, see Woolsey, § 9. p. 8.

22 Bentham, Vue Generale d'un corps complet de législation ch. 1. note 1. (Traités 3. p. 186.) He actually borrowed the idea from the Chancellor d'Aguesseau, whose phrase droit entre les gens Bentham improved into droit international. This title is adopted by most French writers: it is the derecho

23

Austin's name of Positive International Morality is certainly not likely to supersede it. The old style of Law of Nations has been generally abandoned since the time of Bentham, although one or two authors have continued to employ it".

24

Public and Private International Law. The very recent division of International Law into Public and Private does not enter into our present consideration. The occasions of what is called Private International Law are generally the private rights and relations of individuals, but—as the point to be decided in most cases is, which of the conflicting laws of two or more states should be applied-the parties, whose conduct is regulated by the rule appealed to, are really the states: so that there is no necessity for us to detach this branch of International Law from the remainder. dation and sanction of the two are the same 25.

The foun

Law or not Law. On the question whether International Law properly comes under the name of Law at all, I will here briefly mention the views of Hobbes, Grotius, and Blackstone, before I come to consider Austin's objection.

There is no sentimental morality about the plain-spoken author to whom I have first referred. "That law, which is commonly called the law of nations" says Hobbes "and the law of nature is the same thing2 and "as the laws of Nature (Justice, Equity, Modesty, Mercy, and, in sum, doing to others as we would be done to)," would not be observed among

26"

internacional of Riquelme and Pando. Italian authors seem to speak mostly of diritto pubblico.

23 Austin 5. pp. 177. 8, &c.

24 E.g. Manning. See his reasons in ch. 1. p. 3. Law of Nations. The majority of Germans, moreover, retain the various ambiguities of Jus Gentium in Völker-recht.

25 See Woolsey § 69. The style (Conflict of Laws), under which Story treated this subject, very well indicates its scope.

26 Leviathan Pt. 2. ch. 30. p. 185.