International Law Part 2

(_e_) =Chivalry.= The code of chivalry and the respect for honor which it enjoined introduced a basis of equable dealing which on account of the international character of the orders of chivalry reacted upon state practice throughout Christian Europe.

(_f_) =Commerce and Sea Laws.= The expansion of commerce, especially maritime, emphasized the duties and rights of nations. The old Rhodian laws of commerce, which had in part been incorporated in and expanded by the Roman code during the days before the overthrow of the Empire, formed a basis for maritime intercourse. From the fall of the Empire to the Crusades commerce was attended with great dangers from pirates on the sea and from exactions in the port. The so-called _Amalfitan Tables_ seem to have been the sea law of the latter part of the eleventh century. The much more detailed _Consolato del Mare_ of doubtful origin between the twelfth and fourteenth centuries derived some of its principles from the eleventh-century code. The _Consolato_ was recognized by maritime powers as generally binding, and made possible wide commercial intercourse. Many of its principles have stood to the present day, though touching such questions as the mutual rights of neutrals and belligerents on the sea in time of war.[26] As the _Consolato_ formed the code of Southern Europe, the _Laws of Oleron_ formed the maritime code for Western Europe, and were compiled the latter part of the twelfth century, whether by Richard I. or by his mother Queen Eleanor is a disputed question. These laws are based in large measure on the other existing systems. The _Laws of Wisby_, dating from about 1288, supplemented the _Laws of Oleron_, and formed the fundamental law of maritime courts of the Baltic nations.[27] The Hanseatic League in 1591[28] compiled a system of marine law, _Jus Hanseatic.u.m Maritimum_, based on the codes of Western and Northern Europe. The maritime law of Europe was practically unchanged for nearly a hundred years, when systematized in 1673 under Louis XIV. Similar to the maritime codes are the "Customs of Amsterdam," the "Laws of Antwerp," and the "Guidon de la Mar."[29]

(_g_) =Consulates.= Closely connected with the development of maritime law during the latter part of the middle period was the establishment of the office of consul. The consuls, under the t.i.tle of _consules marinariorum et mercatorum_, resident in foreign countries, a.s.sisted by advice and information the merchants of their own countries, and endeavored to secure to their countrymen such rights and privileges as possible. These seem to have been sent by Pisa early in the eleventh century, and were for some time mainly sent by the Mediterranean countries to the East.

(_h_) =The discovery of America= marked a new epoch in territorial and mercantile expansion, and introduced new problems among those handed down from an age of political chaos.

(_i_) =Conclusion.= The middle period, with all its inconsistencies in theory and practice, had nevertheless taught men some lessons. The world-empire of Rome showed a common political sovereignty by which the acts of remote territories might be regulated; the world-religion of the Church of the middle period added the idea of a common bond of humanity. Both of these conceptions imbued men's minds with the possibility of a unity, but a unity in which all other powers should be subordinate to a single power, and not a unity of several sovereign powers acting on established principles. The feudal system emphasized the territorial basis of sovereignty. The Crusades gave to the Christian peoples of Europe a knowledge and tolerance of each other which the honor of the code of chivalry made more beneficent, while the growth of the free cities opposed the dominance of cla.s.ses feudal or religious.

The fluctuations and uncertainties in theory and practice of international intercourse, both in peace and war, made men ready to hear the voice of Grotius (1583-1645), whose work marks the beginning of the modern period.

-- 12. Modern Period (1648- )

The modern period may be divided into three epochs for International Law: (_a_) from the Peace of Westphalia, 1648, to the Peace of Utrecht, 1713; (_b_) from the Peace of Utrecht, 1713, to the Congress of Vienna, 1815; (_c_) from the Congress of Vienna, 1815, to the present time.

(_a_) =1648-1713.= It became evident at the termination of the Thirty Years' War in 1648 that the old doctrines of world-empire, whether of Pope or Emperor, could no longer be sustained. The provisions of the Peace of Westphalia, while not creating a code to govern international relations, did give legal recognition to the existence of such conditions as Grotius contemplated in "De Jure Belli ac Pacis," viz.: sovereign states, equal regardless of area and power. The decree of James I., in 1604, establishing a neutral zone by "a straight line drawn from one point to another about the realm of England," in which neither of the parties to the war between the United Provinces and Spain should carry on hostilities, formed a precedent in maritime jurisdiction, even though the decree was but imperfectly enforced. This early part of the modern period was especially fruitful in treatises and discussions upon the nature of international law, and upon what it _ought to be_, and also upon the law of the sea particularly Grotius's "Mare Liberum,"

1609, Selden's "Mare Clausum," 1635, and Bynkershoek's "De Dominio Maris," 1702.[30] During this period the public law was diligently studied, the right of legation became generally recognized, French gradually took the place of Latin in international intercourse,[31] with a corresponding modern spirit in the practice, though the discussions were usually ponderous and abstract, the idea of the balance of power flourished and formed a subject of frequent controversy, the principle of intervention upon political grounds was propounded and acknowledged, and the opinions of the great publicists, such as Grotius, gained great weight and were widely studied. The general principles of neutral trade, including "free ships, free goods," were laid down, prize laws and provisions as to contraband were adopted, numerous treaties of commerce gave witness of the growth of international intercourse, and both men and states became somewhat more tolerant.

(_b_) =1713-1815.= The Treaty of Utrecht (1713) contained recognition of many of the principles which had become fairly well accepted during the years since 1648. There are evidences of the growing influences of the New World upon the policy of the Old; the American fisheries question appears; the international regulations in regard to commerce are multiplied, and the central subject of the preamble is the subject of "the balance of power."[32] For many years the question of succession to the various seats of royal and princely power formed the chief subject of international discussion. During the eighteenth century the steady growth of England as a maritime power and the European complications over trans-Atlantic possessions brought new international issues. The basis of modern territorial acquisition was found in the Roman law of _occupatio_, and its laws of river boundaries were almost exactly followed.[33] From the Treaty of Aix-la-Chapelle (1748), in which former treaties were generally renewed, to 1815, the growth and observation of the principles of international law was spasmodic. By the Peace of Paris and by the Peace of Hubertsburg (1763), many questions of territorial jurisdiction were settled. England, now become the dominant power in North America, with greatly extended power in the East, impresses upon international practice adherence to actual precedent rather than to theoretically correct principles. At the same time in Central Europe the conditions were ripe for that violation of international justice, the part.i.tion of Poland in 1772, followed by the further part.i.tion in 1793 and 1795. The rights which the concert of nations was thought to hold sacred were the ones most ruthlessly violated by the neighboring powers. The American Revolution of 1776 and the French Revolution of 1789 introduced new principles. The "armed neutrality" of 1780,[34]

while maintaining the principle "free ships, free goods," made impossible the converse, "enemy's ships, enemy's goods," which had been held. Both the American and French Revolution made evident the necessity of the development of the laws of neutrality hitherto greatly confused and disregarded.[35] During the French Revolution it seemed that to Great Britain alone could the states of Europe look for the practice of the principles of international law. After the French Revolution it was necessary to define _just intervention_ that Europe might not be again convulsed. It became clear that the state was an ent.i.ty and distinct from the person of its king. No longer could the king of France or of any European state say "L'etat c'est moi." Even though personal selfishness of monarchs might pervade the Congress of Vienna, the spirit of nationality could not long be restrained. The period from 1713 to 1815 had tested the general principles propounded during the seventeenth century, and it was found necessary to expand their interpretation, while the growth of commerce and intercourse made necessary new laws of neutrality and new principles of comity, such as were in part forthcoming in the early days of the nineteenth century, as seen in the resistance to the right of search, the declaration against African slave trade, establishment of freedom of river navigation, improved regulations in regard to trade in time of war, neutralization of Switzerland, placing of protectorate over Ionian Islands, and the determination of precedence and dignities of the various diplomatic agents and the states which they represented. By the year 1815 the theory of the seventeenth century had been severely tested by the practice of the eighteenth century, and it remained for the nineteenth century to profit by the two centuries of modern political experience.

(_c_) =1815 to date.= The Peace of Westphalia (1648), the Peace of Utrecht (1713), and the Treaty of Vienna (1815) are the three celebrated cases of combined action of modern European powers. The "balance of power" idea had gradually been supplemented by "the concert of the powers" idea, which would not merely maintain the relative _status quo_ of "the balance," but might enter upon a positive policy of concerted action. The "Holy Alliance" of 1815, to promote "Justice, Christian Charity, and Peace,"[36] was first broken by its originators. There was a strong feeling that the principles of international law should be followed, however, and this, the "Declaration of the Five Cabinets,"

Nov. 15, 1818, distinctly avowed in "their invariable resolution, never to depart, either among themselves, or in their relations with other states, from the strictest observation of the principles of the Rights of Nations."[37] The attempt to extend the principle of intervention in favor of maintaining the various sovereigns on their thrones, and in suppression of internal revolutionary disturbances by foreign force was made in the "Circular of the Three Powers," Dec 8, 1820.[38] Under many forms intervention has been one of the great questions of the nineteenth century, and the growing proximity and multiplication of relations of states during the century has added many complications.[39] The Grecian War of Independence (1821-1829) brought the new principle of pacific blockade (1827), and at its conclusion the powers guaranteed the sovereignty of Greece. The subjects of right of search, foreign enlistment, Monroe Doctrine, freedom of commerce and navigation, expatriation, extradition, neutralized territory, ship ca.n.a.ls, consular rights, neutral rights and duties, arbitration, reciprocity, mixed courts, international postage, weights and measures, trade-marks and copyright, rules of war, sub-marine cables, and sphere of influence, which have come to the front during the nineteenth century, indicate in a measure the subject-matter of international negotiation. Throughout the period since 1815 the tendency has been rather to regard what _is_ the international practice.

-- 13. Writers

Among the writers upon subjects connected with international law before the days of Grotius the most prominent are Victoria ( -1550?), Ayala (1548-1584), Suarez (1548-1617), and Gentilis (1551-1611). While in many respects their contributions to the science were valuable, the work of Grotius stands out preeminent among all the early writers.

=Hugo Grotius= (b. Delft, Apr. 10, 1583; d. Rostock, Aug. 28, 1645).

Scholar; jurist; statesman; good family; precocious; prodigious learning in many branches; at fifteen with special emba.s.sy to France; at twenty historiographer to the United Provinces; at twenty-five advocate-general of the fisc of Holland and Zealand; married next year Mary van Riegesberg, a worthy help-meet; at thirty pensionary of city of Rotterdam; same year one of deputation to England to settle maritime disputes. Grotius took active part in religious disputes, on which account in 1619 he was sentenced to imprisonment for life and confiscation of his property. Two years later, through cleverness of his wife, he escaped to Paris. Here days of adversity and study. In 1625 "De Jure Belli ac Pacis" published; brought no profit but immediate and lasting fame. Disappointed in his hope to return to permanent residence in Holland; is appointed Swedish amba.s.sador at French Court, 1635-1645.

Declines further service in 1645. Retires, honored in all lands; shipwrecked; died at Rostock, Aug. 28, 1645.[40]

Grotius's "De Jure Belli ac Pacis" (1625). An attempt to bring into a systematic treatment those principles which have since become known as international law. Touches upon many other subjects; rich in quotations; broad philosophical basis gives it permanent value. Conditions in Europe at time of appearance of work gave it immediate and powerful influence in determining course of modern political history. Upon the foundation laid by Grotius the modern science has been largely built. Of course, many of the principles expounded by Grotius are no longer applicable, and many new principles, as the doctrine of neutrality, have gained recognition.

=Zouch= (=1590-1660=), the successor of Gentilis, as professor of Roman Law at Oxford, while a follower of Grotius in matter and method, deserves mention for his distinction between _jus gentium_ and that law to which he gives the name _jus inter gentes_, in the French translation called _Droit entre les Gens_, later _Droit International_, and in the English, Law of Nations, and since the latter part of the eighteenth century when Bentham led the way, International Law.

=Pufendorf= (=1632-1694=) in his voluminous works in general follows Grotius.

Toward the end of the seventeenth century a school opposing the earlier writers arose. This school, headed by =Rachel= (=1628-1691=), a.s.signed a stronger authority to the principles of international law, and gave more attention to usage, whether tacitly admitted or plainly expressed, and to compacts.

=Bynkershoek= (=1673-1743=), limiting his work to particular subjects in international law, gave to the eighteenth century several authoritative treatises which are justly regarded as of the highest worth. He especially defined the laws of maritime commerce between neutrals and belligerents (_De Dominio Maris_, 1702), gave an outline of amba.s.sadorial rights and privileges (_De Foro Legatorum_, 1721), besides contributing to a much clearer understanding of the general subject of international law.

=Wolfe= (=1679-1754=) published in 1749 his "Jus Gentium." This bases international law on a sort of state universal, _civitas maxima_, made up of the states of the world in their capacity as voluntarily recognizing a natural law.

=Vattel= (=1714-1767=), an ardent admirer of Wolf, published in 1758 his "Law of Nations," which he based upon the work of Wolf. This work of Vattel was clear and logical and gained an immediate and wide influence, far surpa.s.sing that of his master.

=Moser= (=1701-1786=) brings into the science the positive method which Rachel had hinted at in his work a hundred years before. He narrows his view to the principles underlying the cases of his own day, and would build the science on recent precedents. The method thus introduced has strongly influenced succeeding writers.

=G. F. de Martens= (=1756-1801=) combines in a measure the method of Vattel with the positive method of Moser in his "Precis du Droit des Gens Moderne de l'Europe," 1789. This treatise has been a recognized standard.

Many special and general works appeared in the latter years of the eighteenth and early years of the nineteenth century.

=Wheaton= (=1785-1848=), the foremost American writer on international law, published in 1836 his "Elements of International Law," which has long been recognized as a standard throughout the world.

Beside the great work of Wheaton justly stands Phillimore's "Commentaries upon International Law."

Many other works of highest merit have appeared during the latter half of the nineteenth century, such as those of Bluntschli, Travers Twiss, Calvo, Wharton, Pradier-Fodere, and of the eminent authority, the late William Edward Hall. There are also many living writers whose contributions are of greatest worth.[41]

CHAPTER IV

SOURCES

14. +Practice and Usage.+

15. +Precedent and Decisions.+ (_a_) Prize and Admiralty courts.

(_b_) Domestic courts.

(_c_) Courts of arbitration.

16. +Treaties and State Papers.+

17. +Text Writers.+

18. +Diplomatic Papers.+

-- 14. Practice and Usage

If for a time international intercourse follows certain methods, these methods are regarded as binding in later intercourse, and departure from this procedure is held a violation of international right. That collection of customs known as "The Law Merchant" is an example of a source of this cla.s.s. Of this it has been said, "Gradually, the usages of merchants hardened into a cosmopolitan law, often at positive variance with the principles of local law, but none the less acquiesced in for mercantile transactions, and enforced by tribunals of commanding eminence and world-wide reputation, such as the courts of the Hanseatic League and the _Parloir aux Bourgeois_ at Paris."[42]

Sir W. Scott, in the case of the "Santa Cruz," 1798, said "Courts of Admiralty have a law and a usage on which they proceed, from habit and ancient practice."[43]

-- 15. Precedent and Decisions

The domestic courts of those states within the family of nations, may by their decisions furnish precedents which become the basis of international practice.

(_a_) =Prize and Admiralty courts= decisions form in themselves a large body of law. Jurisdiction in admiralty and maritime causes in the United States rests in the District Courts, the Circuit Courts, and the Supreme Court. The District Courts have original jurisdiction in civil causes of admiralty and concurrent jurisdiction with the Circuit and State Courts in suit of an alien, because of violation of international law or treaty of United States. The District Court also has full prize court powers.

Appeals from prize courts decisions go directly to the Supreme Court for final judgment; appeals from admiralty decisions go to the Circuit Court for final judgment.[44] The prize courts of other powers vary in jurisdiction, nature, and procedure. British and American courts rely more particularly upon precedents, while the Continental courts follow more distinctly the general principles laid down in codes and text writers, and place less reliance upon previous interpretation of these principles as shown in court decisions.[45] Whatever the method of the prize court, its decision, if legally rendered, stands as valid in all states.[46]

(_b_) The decisions of =domestic courts= upon such matters as extradition,[47] diplomatic privileges, piracy, etc., tend to become a source of international law. In the United States the Supreme Court has original jurisdiction "in all cases affecting amba.s.sadors, other public ministers, and consuls."[48]

(_c_) The decisions of =courts of arbitration= and other mixed courts are usually upon broad principles. Some of the principles involved may become established precedents, yet the tendency to render a decision, which by a compromise may be measurably acceptable to both parties, may lessen the value of the decision as a precedent. As arbitration is of necessity voluntary, there is generally a consensus upon certain points, even though the decision rendered may not become a precedent. The growth of the practice of arbitration of disputes is an indication of the general recognition of mutual confidence between states. The principles upon which the court of arbitration bases its decision, rather than the decision itself, furnish material valuable for international law.