« PreviousContinue »
religious sanction to its observance, and in so far as international law embodied its principles, gave the same sanction to the observance of international equity. This may be seen in the religious formula in treaties, even to a late date.
(c) The common law, itself international as derived from three systems, according to tradition, by Edward the Confessor, and subsequently modified by custom, furnished a practical element in determining the nature of international law.
(d) Equity promoted the development of the recognition of principles in international law. In the early days of England cases arose which were not within the cognizance of the common law judges. The petitioner having applied to the king in Parliament or in council for justice, his petition was referred to the chancellor, the keeper of the king's conscience, who, after a hearing, required that what was equitable should be done. Thus the simpler matters came before the common law court, the more difficult before the equity court. Even now a jury largely deals with questions relating to the recovery of money, and their decision is a verdict, which is followed by a judgment. In an equity court, the more difficult problems of business and commerce are considered ; and the decision of the judge is a decree.
(e) Admiralty law may be defined as in one sense the law of the sea. Anterior to and during the Middle Ages, the maritime relations of states gave rise to sea laws, many of which are to-day well-recognized principles of international law.
§ 8. International and Statute Law Statute law proceeds from legislative enactment, and is enforced by the power of the enacting state within its jurisdiction.
International law, on the other hand, is not formally enacted, and has no tribunal for its enforcement. Resort may be had to war in case of infraction of its rules, but the issue may rather depend upon the relative powers of the two states and not upon the justice of the cause.
$ 9. How far is International Law entitled to be
called Law ? If law is defined, as by Austin, “A rule laid down for the guidance of an intelligent being by an intelligent being having power over him," l it would not be possible to include under it international law without undue liberality in the interpretation of the language.
In form, however, law is a body of rules and principles in accord with which phenomena take place. If these rules are not followed as enunciated by the state in case of statute law, certain penalties are inflicted. The nature of the penalty must to a great extent depend on the source. International law is the body of rules and principles, in accord with which, interstate phenomena take place. Violations of international law do not meet the same penalties as those of statute law, as they do not have the same source nor an established tribunal for their enforcement. International law is, however, in form law and in practice so regarded.2
1" Lectures on Jurisprudence," I.
2 Walker, “Science of International Law,” Chs. I. and II., fully discusses Austin's definition,
10. EARLY PERIOD.
(a) Roman Empire.
(c) 1815- . 13. Writers.
§ 10. Early Period The history of the development of those rules and principles now considered in international law naturally falls into three periods, early, middle and modern.1
The early period dates from the time of the development of early European civilization, and extends to the 1 Bluntschli, “ Völkerrecht,” Introduction ; Lawrence, $ 20.
beginning of the Christian Era. During this period the germs of the present system appear.1
(a) Greece. The dispersion of the Greeks in many colonies which became practically independent communities gave rise to systems of intercourse involving the recognition of general obligations. The maritime law of Rhodes is an instance of the general acceptance of common principles. The main body of this law has not survived, yet the fragment appearing in the Digest, De Lege Rhodia de Jactu,) is, after more than two thousand years, the basis of the present doctrine of jettison. It is reasonable to suppose that though the words of other portions of the Rhodian law are lost, the principles may have entered into formation of later compilations. The recognition by Greece of the existence of other independent states, and the relations into which the states entered, developed crude forms of international comity, as in the sending and receiving of ambassadors 4 and the formation of alliances.5
1 Walker, “Science of International Law,” Ch. III., p. 58. "But when, beside the vague and fleeting World Law, the law of all humanity, was recognized a law special to certain peoples, when the distinction was drawn between the progressive and the stationary, between civilization and barbarity, when the Greek noted Tà voulua των Ελλήνων, and the Roman felt the ties of a particular Jus Fetiale and a particular Jus Belli, International Law cast off its swaddling bands, and began its walk on earth."
2 Cicero, “Pro Lege Manilia,” Ch. XIII.
8 Justinian Digest, 14. 2, “If goods are thrown overboard to lighten the ship, as this is done for the sake of all, the loss shall be made good by a contribution of all.”
4 Bluntschli, “ Völkerrecht,” Introduction ; Thucydides, “ Peloponnesian War,” II., 12, 22, 29.
6 The Amphyctionic League recognized some principles of interstate right and comity, as well as preserved Grecian institutions and
(6) Rome. Rome made many contributions to the principles of international law in the way of the extension of her own laws to wider spheres, and in the attempt to adapt Roman laws to conditions in remote territories. In this early period Rome may be said to have contributed to the field of what is now considered private international law rather than to that of public international law. This is evident in the laws in regard to marriage, contract, property, etc. The dominance of Rome impressed her laws on others, and extended the influence of those principles which, from general practice, or conformity to accepted standards, gained the name Jus Gentium.1
$ 11. Middle Period The varied struggles of the middle period — from the beginning of the Christian Era to the middle of the seventeenth century — had a decided influence upon the body and form of international law.
(a) Roman Empire. The growth of the Roman Empire, as the single world, power and sole source of religious traditions. This is shown in the oath of the members, 6 We will not destroy any Amphyctionic town nor cut it off from running water, in war or peace ; if any one shall do this, we will march against him and destroy his city. If any one shall plunder the property of the god, or shall be cognizant thereof, or shall take treacherous counsel against the things in his temple at Delphi, we will punish him with foot and hand and voice, and by every means in our power.” They also agreed to make and observe humane rules of warfare. See also Bluntschli, “ Völkerrecht," Introduction.
1 Maine, “ Ancient Law," Ch. III. The idea as to what jus gentium was, of course varied with times. Under the Empire it lost its old meaning. See Cicero, " De Officiis," III., 17; Livy, VI., 17; IX., 11; I., 14; V., 36 ; Sallust, “Bell. Jug.,” XXII. ; Tacitus, “ Ann.," 1, 42; “Quintus Curtius,” IV., 11, 17.