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PART I.

INTRODUCTORY.

CHAPTER I.

THE NATURE AND SCOPE OF INTERNATIONAL LAW.-MARI." TIME CODES.-RECENT PROGRESS IN CODIFICATION.— OBSERVANCE OF INTERNATIONAL LAW.

1. Definition of international law.-International law, as commonly understood, is that body of rules which prescribes the rights and duties of states in their mutual relations, and which governs generally the actions of modern civilized states in their intercourse with one another.

These rules are the results of customs and precedents arising from the intercourse of states, of various international agreements, and of the acts of states which have in the lapse of time been recognized as a general authority by the various civilized nations of the world. These rules may justly be considered as based upon the moral convictions and the wise experience of enlightened mankind.

2. International law compared with municipal law.-International law differs from national or municipal law, especially from that which is written law, in that it has primarily states instead of persons for its subjects, that it does not proceed from any superior law-making power, and that there is no sovereign authority whose function it is to enforce the law in the case of neglect or violation.

Its existence is, however, accepted by all civilized states as a ruling force between them, and it has never been officially suspended by them in time of peace or of war. A recognition of its obligations is incorporated in the municipal law of many states, the Constitution of the United States of America, for

instance, investing Congress with the power to define and punish offenses against the law of nations.'

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3. Origin of international law.-Professor Moore, in his Digest of International Law, says, "There is no precise time at which it may be said that the body of rules which regulate, under the title of international law, the intercourse of nations, came into being. As a science it assumed a definite form in the sixteenth and seventeenth centuries, in the works of the great philosophical jurists, of whom Grotius is the most illustrious. These works are distinguished by the blending of moral principles as discovered by reason and revelation with positive law and custom as found in the jurisprudence of nations and their practices. The first constituted what was called the law of nature (jus natura); the second the law of nations (jus gentium). Hence the title of some of the treatises the Law of Nature and of Nations. Of the positive element of the new science the Roman civil law was the chief source, since it was the foundation of the jurisprudence of the countries of continental Europe, whose laws and practices were chiefly consulted."

4. The term "international law."-" It is thus apparent that from the beginning the science in question denoted something more than the positive legislation of independent states, and the term, international law,' which has in recent times so generally superseded the earlier titles, serves to emphasize this fact. It denotes a body of obligations which is, in a sense, independent of and superior to such legislation. The government of the United States has on various occasions announced the principle that international law, as a system, is binding upon nations, not merely as something to which they may be tacitly assumed to have agreed, but also as a fundamental

1 Const. of U. S., Sec. 8, Art. 1.
'Moore's Digest, Vol. 1 (2), pp. 1-2.

condition of their admission to full and equal participation in the intercourse of civilized states."

5. Authorities in international law." Though on many subjects the rules of international law are clear and precise, yet, as often happens with municipal law, the rule applicable to a particular case may be uncertain and difficult of ascertainment. In such cases an appeal is made to the authority of writers; to the provision of treaties disclosing a consensus of opinion; to the laws and decrees of individual states regulating international conduct; to the decisions of international tribunals, such as boards of arbitration; and to the judgments of prize courts, and of ordinary municipal courts, purporting to be declaratory of the law of nations."

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6. Maritime codes.-As a matter of especial interest to naval officers and sea-faring men are the various codes and collections of sea laws existing before the time of Grotius, which were factors in the early development of international law and of our present maritime municipal laws. Speaking of these, Oppenheim says, "From the eighth century the world trade, which had totally disappeared in consequence of the downfall of the Norman Empire and the destruction of the old civilization during the period of the migration of the peoples, began slowly to develop again. The sea trade specially flourished and fostered the growth of rules and customs of maritime law which were collected into codes and gained some kind of international recognition. The more important of these collections are the following: The Consolate del Mare,' a private collection made at Barcelona in Spain in the middle of the fourteenth century; 'The Laws of Oleron,' a collection, made in the twelfth century, of decisions given by the maritime court of Oleron in France; the Rhodian Laws,' a very old collection of maritime laws

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3 * Oppenheim, Vol. 1, pp. 55-56.

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