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History of International Law Since the Peace of Westphalia

Published online by Cambridge University Press:  04 May 2017

Amos S. Hershey
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Extract

The treaties of Münster and Osnabrück gave to Europe a sort of international constitution which remained the basis of its public law down to the French Revolution. But it would be a serious error to assume that the international community of states as revealed to the world by the Peace of Westphalia implied the recognition of the science of international law as understood and practiced by the society of nations at the present time. The science of international law as it exists today is a result of slow historical growth and is the product of two main factors, viz., certain theories or principles on the one hand, and international practice or custom on the other. The relative value and influence of the contributions of each of these factors is so difficult to determine that they have never been thoroughly eifted or separated — a task left for the future historians of international law.

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Research Article
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American Journal of International Law , Volume 6 , Issue 1 , January 1912 , pp. 30 - 69
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Copyright © American Society of International Law 1912 

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References

1 For references and a brief sketch of the “Forerunners of Grotius,” see note at the end of this article.

2 This is shown by the facts that at least forty-five Latin editions of his book were issued prior to 1748 and that it had been translated into the leading modern languages before the close of the seventeenth century. See Rivier in 1 Holtzendorff, Handbuch, § 88, for list of editions. It made such a great impression upon Gustavus Adolphus that he is said to have slept with the work under his pillow during his campaigns in Germany.

Grotius was born at Delft, Holland, in 1583. As a child he was a prodigy, writing Latin verses at nine years of age. He entered the University of Leyden when twelve years old and took his degree of Doctor of Laws at Orleans, France, at the age of fifteen. As a result of religious controversy, he was sentenced to imprisonment for life in 1619; but in 1621 he succeeded in escaping from prison, and lived for ten years in Paris where he composed and published his great work in 1623-25. In 1634 he was appointed Swedish minister to France — a position which he held until the year of his death in 1645. Grotius was poet, philologist, philosopher, historian and mathematician, as well as diplomatist, lawyer and jurist.

3 For references on the jus naturale, see note at the end of this article.

4 The best recent estimates of Grotius’ work are by Basdevant in Les fondateurs de droit int., ed. by Pillet; Andrew White in Seven Statesmen (1910), 54-110; and Walker, Science, etc., ch. 4.

For a very full analysis of the jure belli ac pacis, see Walker, History, §§ 143-148. The best modern translation is by Pradier-Fodéré (1867). It is preceded by a valuable biographical and historical essay.

5 Though differing widely from the latter, both in point of view and details, Grotius (lib. I, ch. 3, § 7) practically follows Bodin, who defines sovereignty as “supreme power over citizens and subjects, unrestrained by the laws.” Dunning, Political Theories from Luther to Montesquieu, pp. 96 and 181. Bodin’s great work De Republica was first published in 1676. Grotius has been severely criticised for his defense of the patrimonial state and his repudiation of the doctrine of popular sovereignty; but these views doubtless served to recommend his opinions to the absolute monarchs of his day.

6 De jure naturœ et gentium, II, ch. 3, § 22. On this point Pufendorf followed Hobbes (De Cive, XIV, 4), who divided natural law into a “Natural Law of Men and a Natural Law of States,” and maintained that the two were composed of identical precepts. In other words, states live in a state of nature in respect to each other. But Hobbes and Pufendorf differed widely in their views as to the sociable nature of man. Pufendorf, however, adopted Hobbes’ imperative view of the nature of law.

7 The only parts of his work which deal with international law proper are the last five chapters of the eighth book.

8 On Thomasius, see especially Andrew White in Seven Great Statesmen (1910), 113-61.

9 Westlake, Chapters, p. 72.

10 A belated pure “naturalist” has even appeared during the latter half of the nineteenth century — the Scotch professor Lorimer. He still defines the law of nations as the “law of nature realized in the relations of separate nations” or “political communities.” See his Institutes of the Law of Nations (1883), I, pp. 1 and 19.

11 In 1640 Selden also recognized the importance of a positive law of nations in a work on Law of Nature and Nations among the Hebrews.

12 The influence of Zouch in England was very great. He was also the first publicist to use the term jus inter gentes in the title of his work ; but he was not the inventor of this phrase, as generally stated. Victoria ( see note at the end of this article) had employed it in the first half of the sixteenth century, and Grotius had made use of the phrase jus inter civitates, although the latter generally employed the ambiguous term jus gentium.

13 It should not bo forgotten that Germany also produced several representatives of the positive or historical school during the seventeenth century. Of these the most important was Rachel, who published two dissertations on De jure naturœ et gentium in 1676.

14 The fame of Bynkershoek rests upon three books: De dominio maris ( 1702) : De faro legatorum (1721); Cuestiones juris publici (1737). Wheaton (History, p. 193) says that Bynkershoek was “the first writer who has entered into a critical and systematic exposition of the Law of Nations on the subject of maritime commerce between neutral and belligerent nations.”

15 Nys ( 1 Droit Int., p. 267 ) states that in 1765 Moser had already composed 200 works and studies. His principal work, entitled Versuch des Neusten Europäischen Völkerrechts in Friedens und Kreigszeiten in ten volumes, was completed in 1780. It is said by Wheaton (History, p. 323) to contain a rich mine of materials. For a list of his principal works on international law, see Wheaton, pp. 324-25 ; and Rivier in 1 Holtzendorff’s Bandbuch, § 102.

16 An English translation by Gobbett was published at Philadelphia in 1795. The best and most recent edition, with notes by Pinheiro-Ferreira and Vergé, appeared at Paris in 1864. Von Martens also began the celebrated collection of treaties which bears his name and which has been continued up to our own time. G. F. von Martens must not be confused with his nephew Charles de Martens, the author of the Causes célèbres de droit des gens ( 1827 ) and the Guide diplomatique (1832) or with the famous Russian jurist and publicist F. de Martens of our own day.

17 See his Frécis, liv. IV.

18 This famous work, which was published in 1758, bears the additional title: Principles of the Law of Nature Applied to the Conduct and Affaira of Nations and Sovereigns. It has had many editions and translations. The most complete and recent edition, with notes variorum, is that edited by Pradier-Fodéré in 1863.

19 In addition to these three classes of positive law, we have of course in the Wolffian, as in the Grotian system, the natural or necessary law which Vattel (Preliminaries, §8 6-8) says “consists in the application of the law of nature to nations.”

20 Though not members of any particular school, the following eighteenth century publicists should receive special mention because of their influence upon the development of maritime law, more especially in connection with the law of neutrality : the Danish minister Hübner, whose important treatise entitled De la saisie des batimens neutres (Seizure of Neutral Vessels) was published in 1759; the French jurist Valin, whose excellent Commentary upon the Marine Ordinance of 1681 and Traité des prises (Treatise on Prizes) appeared during 1760-63; Heineccius, who wrote his treatise De navibus in 1721 and Elementa juris naturális which was translated into English in 1763; and the Italians Lampredi and Galiani who engaged in a famous controversy on the principles of the Armed Neutrality in the latter part of the eighteenth century. On these authors and this controversy, see Wheaton, History, espec. pp. 200, 219-229, and 309-322.

21 Expansion of England, Lect. II, pp. 24 and 29. There was, however, a long period of peace, and even of alliance, between England and France between 1713-40.

22 This ordinance was modelled on earlier ones. The law of France varied at different times. On the Marine Ordinance of 1681 and the maritime law of this period, see especially Wheaton, History, 107-161.

23 Wheaton, p. 111. “Valin states that this jurisprudence, which prevailed in the French prize courts from 1681 to 1744, was peculiar to them and to the Spanish courts of admiralty, the usage of other nations being to confiscate the goods of the enemy only.” Ibid,, p. 114. Bynkershoek (Cuestiones juris publici, lib. I, cap. 14) denies that the neutral ship carrying enemy goods might he condemned, hut he admits that the goods are subject to confiscation. He also agrees with Grotius (De jure belli ac pacis, lib. III, cap. 6) that the rule that “goods found in enemies’ ships are to be treated as enemies’ goods, ought not be accepted as a settled rule of the law of nations, but as indicating a certain presumption which may be rebutted by valid proof to the contrary.” Grotius adds: “And so it was judged in full senate by our Hollanders in 1338, when war was raging with the Hansa towns; and the judgment has become law.” Some eighteenth century publicists like Hübner and G. F. de Martens declared that both neutral goods and enemies’ ships and enemy goods on neutral ships were free; but their views were not generally accepted either in theory or practice.

24 It ie extremely difficult to say what the law was either in general or at any particular time and place. The rules of the Consolato seem to have prevailed quite generally during the period extending from the thirteenth to the middle of the sixteenth centuries when France adopted harsher rules; About the middle of the seventeenth century, the Dutch began to secure the insertion of the rule of “free ships, free goods” into treaties, conceding in return the confiscation of neutral goods in belligerent vessels (enemy ships, enemy goods). This latter principle was regarded as a corollary of the former, thus reversing the maxims of the Consolato del Mare. Even England, which became the champion of the double doctrine of the Consolato, yielded these rules in a number of treaties. The United States, while advocating the adoption of the principle of “free ships, free goods” and incorporating it into most of their treaties, followed English precedents in their interpretation of the customary law, thus recognizing the right of capture of enemy goods in neutral vessels. On the other hand, our government and courts have always maintained that the goods of the neutral found in the vessel of an enemy are free. The leading case is that of The Nereide (1816), 9 Cranch, 388, espec. p. 418.

On this subject, which has become a mere matter of historical interest since the Declaration of Paris in 1856, see De Boeck, De la propriété ennemie sous pavillon ennemie (1882) ; Bonfils-Fauchille, Nos. 1497-1526; Dupuis, Le droit de la guerre maritime (1889), ch. 2; Hall, Pt. IV, chs. 7 and 9; 2 Halleck (Baker’s 3d ed.) 279-286 ; 2 Hautefeuille, Des Droit des neutres, Titre X; Kleen, De la neutralité, I, Introduction-historique, and II, 92-215; Lawrence, Pt. IV, ch. 4; Manning, Bk. V, ch. 6; 3 Phillimore, Pt. IX, ch. 10; 2 Ortolan, Dip. de la ner, liv. III, ch. 5; 2 Rivier, 429-30; Taylor, Pt. V, ch. 2; 2 Twiss, ch. 3; and 2 Westlake, 125-28.

25 On the Maohiavelian character of the eighteenth century diplomacy, see espec. Sorel, L’Europe et la Revolution Française, I, particularly, ch. I.

26 The first division of Poland has been characterized by Wheaton (History, p. 267) as the “most flagrant violation of natural justice and international law which has occurred since Europe first emerged from barbarism.” Sorel (op. cit., p. 89) remarks: “Two episodes summarized the custom of Europe on the eve of the French Revolution: the war of the Austrian Succession and the division of Poland.” He calls these the “testament of old Europe,” and declares that after this had been signed she could only die, leaving as a legacy the pernicious tradition of the abuses from which she perished.

27 This is a denial of the famous Rule of 1756 which forbade neutrals to engage in the coasting trade of a belligerent, or in trade between a belligerent and its colonies when such trade is not permitted during peace. The rule is now practically obsolete. Whether it was ever good law is doubtful. The principle had been applied to the coasting trade before 1758, and was extended to the colonial trade during the Seven Years’ and the Revoluntionary Wars. The great champion of the rule was England. The leading case is that of The Immanuel, 2 Rob. Rep. 186. On the Rule of 1756, see espec. Hall (3d ed.), § 234; 2 Kleen, § 175; Manning, Bk. V, ch. 5; 7 Moore, Digest, § 1180; 3 Phillimore, Pt. IX, ch. 11; and Wheaton, History, 217-19.

28 See supra, note 24. This principle of “free ships, free goods” had also been asserted in 1752 by the Prussian commissioners who reported to Frederick the Great on the celebrated Silesian Loan Controversy. See Ch. de Martens, 2 Causes célèbres, cause première. For a good summary of this controversy between Great Britain and Prussia, see Wheaton, History, 206-17.

29 Wheaton, History, 297-98. Upon the Armed Neutrality of 1780, see espec. Bergbohm, Die Bewaffnete Neutralität (1884) ; De Boeck, De la propriété prive ennemie, 55 ff; Fauchille, La diplomatie française et la ligue des neutres de 1780 (1893) ; Manning, Bk. V, ch. 6, 325; 3 Phillimore, CLXXXVI ff; Wheaton, History, 295 ff.

30 The main additional article adopted by the Second Armed Neutrality of 1800 affirmed that the “declaration of the officers, commanding the public ships which shall accompany the convoy of one or more merchant vessels, that the ships of his convoy have no contraband articles on board, shall be deemed sufficient to prevent any search on the convoying vessels or those under convoy.” Wheaton, History, p. 399. It will be seen that several of the principles of the Armed Neutrality Leagues are still in advance of international law. They were, of course, far in advance of the times in which they were formulated. Though soon violated by some of the very nations which declared them, they do not deserve the cavalier treatment which they receive at the hands of several English publicists. As Lawrence (Principles, 3d ed., p. 104) points out, “the controversies attending the formation, progress, and dissolution of the two great Leagues known as the Armed Neutralities of 1780 and 1800 did almost as much to clear up the question of neutral rights as the Alabama Controversy and the action of Washington in his second administration did to clear up the question of neutral duties.”

31 2 Sorel, L’Europe et la Rev. Française, p. 89. This decree became part of Tit. VI of the Constitution of 1791. See Anderson, Constitutions and Documents, 93; and Helie, Les Constitutions, 293.

32 3 Sorel, op. cit., 170. This decree was supplemented by that of December 15, 1792, proclaiming liberty and sovereignty to all peoples. See Anderson, op. cit., No. 28, pp. 130-32.

33 “The French people declares itself the friend and natural ally of free peoples ; it does not interfere in the governments of other nations; it does not allow-other nations to interfere in its own.” Arts. 118-119 of the Const, of 1793. Anderson, No. 39, p. 183.

34 The more important of these articles are as follows :

Art. 2. The peoples are independent and sovereign. . . .

Art. 3. A people should do to others as it would have them do to it. . . .

Art. 4. The peoples should do each other as much good as possible in times of peace; in war, the least harm possible.

Art. 5. The particular interest of a people is subordinate to the general interest of the human family.

Art. 6. Every people has a right to organize and change its government.

Art. 7. A people has not the right to intervene in the government of others.

Art. 10. Each people is master of its territory.

Art. 15. An enterprise against the liberty of one people is a criminal attempt against all the others.

Art. 21. Treaties between the peoples are sacred and inviolable.

For the full text of this remarkable declaration, see Nys, La Revolution française et le droit int. in Etudes, II, 395-6; and I Rivier, pp. 40-41.

35 The “Continental System“ of Napoleon was only a continuation of a policy begun under the First French Republic. “Already in 1793 England and Russia interdicted all navigation with the ports of France, with the intention to subdue her by famine. The French Convention answered with an order to the French fleet to capture all neutral ships carrying provisions to the ports of the enemy or carrying enemy goods.” 1 Oppenheim, § 46. For details, see Mahan, Influence of Sea Power upon the French, Revolution and Empire, II, ch. 17 ; and Wheaton, History, 372 ff.

On Napoleon’s Continental System, see Manning, Law of Nations, Bk. V, ch. 10; and the vast Napoleonic literature, especially Fournier, Rose, Sloane, Lanfrey, etc. Perhaps the best accounts are those by Mahan, op. cit., ch. 18; and Henry Adams, History of the V. S., passim, particularly Vol. IV, ch. 4.

For the documents bearing upon the System, see Anderson, Constitutions and Documents, No. 77, and the University of Pa. Trans, and Reprints, Vol. II, No. 2, 17-26.

36 For good accounts of the efforts of the United States to maintain and enforce neutrality during the Revolutionary and Napoleonic period, see Wheaton, Int. Law (Dana’s ed.), note 215; Moore, Am. Diplomacy, chs. 2 and 3; Henry Adams, History of the U. S., passim.

37 Especially fruitful were the Secularization and Mediation Acts which reduced the number of German States to thirty-nine, and prepared the way for Bismarck’s work of unification and reorganization in Germany.

38 On the Congress of Vienna, see especially Debidour, Histoire diplomatique de l’Europe, ch. 11, 2 Fyffe, History of Modern Europe, ch. 1; Rose, Revolutionary and Napoleonic Era, ch. 11; Seignobos, Histoire politique de l’Europe contemporaine (Eng. trans. 1899), ch. 1; Stephens, Revolutionary Europe, eh. 11; Wheaton, History, 424-506. See also Hazen, Europe since 1815, ch. 1 and pp. 738-39, for select bibliography.

39 But this principle was not thoroughly and consistently applied, e. g., in Sweden and Germany.

40 The main lines of this restoration of Europe were laid down by the allies in the treaty of Chaumont of March 1, 1814.

41 On “Europe under the Metternich System,” see espec. Seignobos, Pol. History of Europe, ch. 25; and Hazen (see index and bibliographies).

42 For the text of the Boly Alliance, see the University of Pa. Trans, and Reprints, Vol. I, No. 3, p. 940. For a good summary, see Hazen, 14-16.

43 Phillips, Modern Europe, p. 19; or Hazen, 16 ff.

44 The Protocol of Troppau was an extension to Europe of the reactionary Carlebad Decrees which had struck such a severe blow at freedom in Germany. It declared that the “States which had undergone a change of government due to revolution, the results of which threaten other States, ipso facto, cease to be members of the European Alliance, and remain excluded from it until their situation gives guaranteed for legal order and stability.”

For the text of the Carlsbad Decrees and Troppau Protocol, see Univ. of Pa. Trans, and Reprints, Vol. 1, No. 3, pp. 16-24. For good accounts, see Phillips, pp. 73 and 90; and Hazen, 59-60.

45 For the text of this declaration, see Nys on Le Concert European in 2 Etudes, p. 27.

46 It is to the work of these congresses and the system represented by them that the term “Holy Alliance” has been usually applied.

47 2 Richardson, Messages and Papers of the Presidents, 218.

In another part of this same message (p. 209), Monroe also declared that “the American continents, by the free and independent condition which they have assumed and maintain, are henceforth not to be considered as subjects for future colonization by any European Powers.” This part of the message was directed primarily against the encroachments of Russia in the Northwest.

Perhaps the best and most inclusive statement of the American policy is contained in a letter by Jefferson to Monroe, dated October 24, 1823: “Our first maxim should be, never to entangle ourselves in the broils of Europe. Our second, never to suffer Europe to intermeddle in cis-Atlantic affairs.”

On the Monroe Doctrine, see especially Dana’s note 36 to Wheaton’s Int. Law; Barrai de Montferrat, De Monroe à Roosevelt (1905); Beaumarchais, La Doctrine de Monroe (1898); Edginton, The Monroe Doctrine (1904); Ford in 7 Am. Bistor. Rev., 676-96; Henderson in American Diplomatic Questions (1901), Pt. IV; Moore in American Diplomacy, ch. 6; 6 Moore’s Digest, ch. 20; Petin, Les Etats Unis et la Doctrine de Monroe (1900); Reddaway. The Monroe Doctrine (1898); Snow, Am. Diplomacy, Pt. II; Turner, Rise of the New West, in 14 Am. Nation Series, ch. 12. A good appreciation of the Monroe Doctrine is ‘also contained in Moulin’s excellent work on La Doctrine de Drago (1909). For a good select bibliography, see Hart, Manuel, pp. 61-62 and 246-48.

48 Their recognition by the United States took place in the spring of 1822 ; by England early in 1825. See Paxson, The Independence of the South American Republics (1903).

49 The Declaration of Paris was signed on April 16, 1856, by all the Powers represented at the Congress, viz., England, France, Austria, Russia, Sardinia, Turkey, and Prussia. The states not represented at the Congress were invited to sign, and most of them did so before the end of the year. Japan signed in 1886. The United States, Spain, Mexico and a few minor states held out, but all have in practice observed the rules of the Declaration. Spain gave notice of her adhesion at the Hague Conference of 1907. The objection of the United States was based upon the idea that inasmuch as we did not possess a large navy, the right to fit out privateers must be retained until the capture of private enemy property at sea is abolished. Inasmuch as this condition no longer holds and all the maritime Powers have observed the rules laid down by the Declaration of Paris for at least fifty years, there is no longer any reason for denying or doubting their validity as international law.

On the Declaration of Paris, see especially Dana’s note to Wheaton; and Higgins, The Hague Peace Conferences ( 1909 ), 1-4.

50 All real distinction between the words Congress and Conferences, if such ever existed, seems to have been lost.

51 The Instructions are printed as an Appendix in Scott’s Texts of the Bague Conferences, and as an Appendix in Wilson’s International Law.

52 For the text of the Geneva Convention (including the Additional Articles of 1868), see Higgins, The Hague Peace Conferences, 8-17; Whittuck, Int. Doc, 3-9; or 1 Supplement to this Journal (1907), 90-95. But the Additional Articles failed of ratification. The convention resulted from an agitation aroused by the indefatigable labors of M. Moynier and the publication of a book entitled Un Souvenir de Solferino by M. Dunant, a Swiss philanthropist, who had witnessed the terrible sufferings of the wounded in that battle (1859).

53 This was based on the principle that the only legitimate object of war “is to weaken the military force of the enemy; that for this purpose it is sufficient to disable the greatest possible number of men ; that this object would be exceeded by the employment of arms which uselessly aggravate the sufferings of disabled men, or render their death inevitable.” See preamble of the Declaration in Higgins, 6 ; Whittuck, 10.

54 This conference was attended by representatives of the same Powers which had signed the Treaty of Paris of 1856 — an agreement which Russia had violated by reestablishing her maritime arsenal on the Black Sea upon the outbreak of the Franco-German War of 1870.

55 For the text of the Code of the Brussels Conference, see Higgins, 273-80; Wilson and Tucker, Int. Law, 384-94 (Appendix III) ; Supplement to this Journal (1907), 96-103; or Scott, Texts of the Two Hague Conferences.

The Brussels Conference was attended by delegates from fifteen European states. Owing to a misunderstanding, the United States was not represented. The Latin American states were not invited, and several delegates from South American states were refused admission. See Nys in 2 Etudes, 39-40. On the Brussels Conference, see espec. Holland, Studies, 59-78; and F. de Martens, La Paix et la Querré (1901), 73-132.

56 Art. 6 of the “General Act of the Conference of Berlin Concerning the Congo,” which is printed in the Supplement to this Journal (1909), No. 1, pp. 7-25. This Act was signed by the leading maritime Powers, the United States, and a number of the minor European states (including Turkey) — fourteen in all.

It was afterwards supplemented by the Conference of Brussels of 1890, attended by seventeen states (including the additional states of Persia, Zanzibar and the Congo ), which agreed upon a “General Act for the Repression of the African Slave Trade and the Restriction of the Importation into, and Sale in, a certain defined Zone of the African Continent of Firearms, Ammunition and Spiritous Liquors.” For the text of this Act of 100 Articles, see Supplement, op. cit., 29-69.

On the “Origin of the Congo Free State,” see an interesting article by Jesse S. Reeves in this Journal (1909), 99-118.

57 For a list of 116 such congresses or conferences of an official character since 1850, compiled by the Hon. S. E. Baldwin, see this Journal (1907), 808-817. It is followed by a list (pp. 818-29) of nearly 200 international congresses, conferences or associations, composed of private individuals. These lists must be far from complete, for there are said to have been over 160 international congresses during the year 1907 alone.

58 At this conference twelve Powers were represented. There have been many subsequent International Sanitary Conferences. “In the one field of sanitation. and medicine there are at least twenty separate international organizations.” Professor Reinsch in New York Independent for May 13, 1909.

59 In addition to the lists referred to above, see the articles on “International Conferences” and “International Unions” by Governor Baldwin and Professor Reinsch in this Journal (1907), pp. 569-623. For general references, see pp. 582 and 602 and Bonfils-Fauchille, note, pp. 496-7. The main authorities are Decamps, Les Offices internationaux (1894); Moynier, Les bureaux internationaux (1892) ; Van Overbergh, L’association int. (1907) ; Poinsard, Droit int. conventional (1894) ; ibid., Les Unions et ententes internationales (2d ed. 1901) ; ibid., Le droit int. au XXe siècle (1907); Meili, Die internationalen Unionen (1885-89) in several volumes; and Reinsch, Public International Unions, their work and organization (1911).

Very few writers on international law devote much space to this subject. Exceptions are Bonfils-Fauchille, Nos. 914-928; 2 Merignhac, Traité, 688-732; Liszt, §§ 16-17, 28-30, 33-36; 2 Nys, Le Droit Int., sec. VIII, ch. 8 ; 1 Oppenheim, §§ 458-71, 578-91; Ullmann, § 58. The Russian F. de Martens, Traité, devotes two whole volumes (II and III) to what he calls “International Administration;” but his whole system is erroneous. He classifies the right of embassy, private international law and war and neutrality under this head.

60 There are said to be over thirty public or official international unions.

61 The commissions are generally composed of representatives of the members of the unions and sometimes exercise a sort of control or supervision over the bureaus, many of which are located at Berne, Switzerland.

On this subject, see especially the excellent article entitle Administrative haw and National Sovereignty by Professor Reinsch in this Journal (1909) 1-45.

62 This fact was doubtless largely due to the absolute monarchs of this period who, ruling by divine right, were unwilling to submit their cause to any other than the God of hosts.

63 In 1828 the American Peace Society was founded by William Ladd of Massa. chusetts. In 1840 he published his prize essays on A Congress of Nations, which contained a notable project of a “Court of Nations” as well. For a good description of his work, see an address by J. B. Scott in 70 Advocate of Peace, 196-200.

The first American peace association appears to have been founded by David L. Dodge in New York in 1816. The London Peace Society was founded in 1816.

64 For a very complete account of the arbitrations to which the United States had been a party up to 1898, see Moore’s monumental History and Digest of Tribunals, in five volumes. Darby (Int. Tribunals, 4th ed., 1904, pp.. 769 ff) gives a list of 228 instances of “formal” arbitration between 1794 and 1901. Of these there were 91 cases prior to 1872 and 137 between 1872 and 1901. The United States was a party in 62 cases; Great Britain, 81; France, 28; Prussia or Germany, 17; Russia, 8. Many of these arbitrations were with or between Latin American states, where this movement has made great progress. (On “Arbitration in Latin America,” see a book by Quesada published in 1907.) La Fontaine (Histoire Sommaire) gives a list of 177 instances between 1794 and 1900. Darby also gives a list of 249 instances of arbitration less formal in character (i. e., by boards of commissions) during the same period. He cites 21 instances of formal arbitration and 39 of the less formal sort, during the first four years (1901-1904) of the twentieth century.

Prior to 1899 the number of arbitration treaties were, comparatively speaking, few in number, but they have greatly increased, especially since 1899. There were 64 such treaties between 1899 and 1907 and the number of arbitration treaties since the meeting of the first Hague Conference had mounted up to about 130 in 1908.

For a list of 67 arbitration treaties between 1900 and 1908, see this Journal (1908), pp. 824-26. The United States has been a party to over 20 such treaties. Fried (Die Moderne Friedensbewegung, pp. 26-27) gives a list of arbitration treaties between 1899-1907. For bibliographies on arbitration, see Griffen, , List of References, published by the Library of Congress (1908)Google Scholar; La Fontaine (1904) ; and Olivart, Bibliographie, etc.

65 The founder or apostle of this new imperialism appears to have been Lord Beaconsfield. It was not fully adopted by Germany until about 1890. See especially the chapters on “National Imperialism” and “German Imperial Politics” in Keinseh, World Politics (1900). For references, see his “Bibliographical Notes.”

66 Russian Rescript of August 24, 1898.

67 Twenty-six states were represented. Of these, twenty were European ; five (China, Japan, Persia, Korea and Siam) were Asiatic; and only two (the United States and Mexico) American.

68 The so-called Hague Tribunal is not even a court; it is a panel or list from which judges may be chosen.

69 Art. 16 of the arbitration treaty or first convention.

70 The great advantage of such a code is that it facilitates arbitration. It is no longer necessary for governments to enter into long and tedious negotiations respecting the mode of procedure on the occasion of each controversy.

71 Out of the 57 states claiming sovereignty, 44 Governments were represented at this conference. These included 18 Latin American states. The other two — Honduras and Costa Rica — were invited, and appointed delegates, but these did not take their seats. Asia was again represented by Japan, China, Persia and Siam. Korea, having been occupied by Japan, was refused admission. As in 1899, the vote of Montenegro was cast by Russia’s representatives and Bulgaria was again permitted by Turkey to send delegates.

The number of delegates had increased from 100 in 1899 to 256 in 1907.

72 On the Drago Doctrine, see especially Moulin, La Doctrine de Drago ( 1908 ) ; Drago in this Journal (1907), pp. 692-726; and Hershey, The Calvo and Drago Doctrines, ibid., 26-45. For the “Instructions” of December 20, 1902, by Seflo Drago, the famous Argentine Minister and author of the Doctrine, see I Supplement to Journal, 1-6.

73 The Conference of 1899 had declared itself of the “opinion that the restriction of military charges, which are at present a heavy burden on the world, is extremely desirable for the increase of the material and moral welfare of mankind;” and it had expressed a wish that the governments examine the question.

74 For a table showing which states had signed the various conventions of the Second Hague Conference by June 20, 1908 — the final date set for signatures of the plenipotentiaries — see this Journal (1908), 876-77; Higgins, 630-31; or 2 Scott, The Hague Peace Conferences, 528-31. All but one (Paraguay) had signed the Final Act. The greatest delinquents were China (which had only signed the declaration, the first convention, and the Final Act) and Nicaragua (which had only affixed her signatures to the Final Act). Nicaragua has since given her adhesion to nearly all the Hague conventions. The only conventions which fared badly were the Porter resolution which was only signed (and even then with many reservations) by thirty-four states; the convention on submarine mines which failed to receive the signatures of seven states (including Russia) ; the convention relative to the establishment of an International Prize Court, which was only signed by thirty-one states (Great Britain, Japan, Russia and Brazil being among the non-signatories) ; and the declaration prohibiting projectiles from balloons, which failed of seventeen signatures. The United States did not sign Conventions VI, VII, and XIII.

For a table showing ratifications, see this Journal (1911), 769-70.

75 The failure of the conference to agree upon a definite plan of obligatory arbitration Was mainly due to the opposition of Germany and Austria. The proposition of the United States in favor of exclusive limited compulsory arbitration had thirty-five votes in its favor and only nine against it, with three abstentions. See Professor Hull’s excellent article on “Obligatory Arbitration and the Hague Conferences” in this Journal (1908), 731-42; and 1 Scott, eh. 7.

76 They have gone on increasing since 1907. It would be “highly desirable” to recommend action, or at least negotiation, on this subject at the next conference.

77 This draft, which was mainly based on a project presented by the United States, was annexed to the first recommendation of the conference and is contained in the Final Act. It failed of adoption because of the opposition of many of the smaller states led by M. Ruy Barbosa of Brazil. It provides for a permanent court of competent judges (number not specified) “representing the various juridical systems of the world” appointed for a term of twelve years and capable of reappointment. These judges shall meet at The Hague once a year if necessary (in June), to decide pending cases and designate three judges to whom it delegates its powers. The Powers were unable to agree upon the constitution of the court and the apportionment of the judges.

For the text of this very interesting project, see 2 Supplement to this Journal ( 1908 ), 29-43 ; Higgins, The Hague Peace Conferences, 498-509 ; and Scott, The Texts of the Two Hague Conferences. See especially the admirable article on “The Proposed Court of Arbitral Justice” by J. B. Scott, the real author of the project, in this Journal (1908), 772-810; and ch. 9 of 1 Scott’s Hague Peace Conferences.

78 The attention of the Powers was also drawn to the “necessity of preparing the labors of that Third Conference sufficiently in advance to have its deliberations follow their course with the requisite authority and speed.” It was added :

“In order to achieve that object the Conference thinks it would be very desirable that a preliminary committee be charged by the governments about two years before the probable date of the meeting, with the duty of collecting the various propositions to be brought before the Conference, to seek out the matters susceptible of an early international settlement, and to prepare a program which the governments should determine upon early enough to permit of its being thoroughly examined in each country. The committee should further be charged with the duty of proposing a mode of organization and procedure for the Conference.”

79 On the Hague Conferences of 1899 and 1907, see especially Barclay, Problems of Int. Practice and Diplomacy (1907) ; Bustamenta y Sirven, La seconde Conference de la paix (1909); Foster, Arbitration and the Hague Court (1904); Fried, Die Zweiter Haager Konferenz ( 1908 ) ; #Higgins, The Hague Peace Conferences (1909) ; #Holls, The Peace Conference at the Hague (1900) ; Hull, The Two Hague Peace Conferences (1908) ; De Lapradelle, La Conference de la Paix, in 6 R. G. D. I. (1899) ; #Lawrence, Int. Problems and Hague Conferences (1908) ; #Lémonon, La seconde Conference de la Paix (1908) ; Mérignhac, La Conference de la Paix (1900) ; Meurer, Die Haager Friedenskonferenz (1905) ; Nippold, Die Fortbïlding des Verfahrens (1905); ibid., Die Zweite Haager Freidenskon-ferenz (1908); #Scott, The Two Hague Conferences (1909); #Renault, L’Oeuvre de la Hague (1908). For a very complete bibliography, see De Łapradelle et Politis, in 16 R. D. I. P. (1909), 385-87.

For the texts of the Conferences, see Higgins, The Bague Peace Conferences; Scott, Texts of the Two Hague Conferences ; 2 Scott, The Hague Peace Conferences; Whittuck, International Documents (1908); and Int. Law Situations (1908), 117 ff.

80 On the London Naval Conference of 1909, see especially Baty, Britain and Sea Law (1911); #Bentwich, The Dec. of Land, (1911); Bowles, Sea Law and Sea Power (1910); Bray, British Rights at Sea (1911); Cohen in 27 Law Quar. Rev. (1911) and 26 Rep. I. L. A. (1911) ; Correspondence, etc., and Proceedings (Cd. 4554 and 4655, 1909) ; Dupuis La guerre maritime, etc. (1911) ; ibid., in 18 R. D. I. P. (1911), 360 ff.; Harris in 56 National Rev. (1910), 393 ff.; Lawrence in 99 Contemp. Rev. ( 1911 ), 348 ff. ; (Lémonon, La Confer, Navale de Londres ( 1909 ) ; Macdonneil in 11 J. Soc. Compar. Leg., 68 and 26 Rep. I. L. A. (1911) ; Myers in this Journal (1910), 4:571; #Niemeyer, Das Seekriegsrecht (1910); Oppenheim in 27 Law Quar. Rev. (1911), 372 ff.; Politis in J. D. I. P. (Clunet, 1909-10) ; Reinsch in 190 No. Am. Rev. (1909), 479 ff.; # Renault, La Confer. Navale de Londres (1909); Stockton in this Journal (1910), 3:196; Westlake in 67 Nineteenth Cent. (1910), 505 ff.; Int. Law Topics (1910).

81 An exception is Lorimer. See note, supra, on p. 34.

* The author modestly omits bis own name, but the list would be incomplete without it. — J. B. S.

82 Oppenheim, a German publicist, who has recently succeeded Weetlake as professor of international law at Cambridge, England, has published an important treatise in English. His point of view is, however, essentially Continental. Rivier should perhaps be classed as a Swiss rather than a Belgian publicist, having been born in Switzerland and having served as Swiss Consul-General in Belgium, but I have classed him as Belgian because the greater part of his work was done at the University of Brussels where he was appointed to a professorship as early as 1867.

83 The most important Forerunners of Grotius were: 1) Alfonso the Wise, King of Castile (1252-84), who, with the aid of collaborators, compiled a mediaeval code of law called the Siete Partidas, which contained many rules of land and naval warfare. 2) Giovanni de Legnano, professor of law at Bologna, who (in 1360) wrote the first substantive treatise upon the laws of war. His work, which was not published before 1477, was entitled De bello, de represaliis, et de duello. 3) Honoré Bonet, a Benedictine monk and a Provençal, the author of a remarkable book which bears the peculiar title of L’arbre des battailes. It was written about 1385 and contains 132 chapters on the law of warfare. This work was re-edited by M. Nys, in 1883. 4 ) Christine de Pisan, perhaps the first advocate of woman’s rights, who was born at Venice in 1363 and was educated at the French court. Among the voluminous works of this remarkable woman, there was one entitled Livre deis faits l’armes et de chevalerie, which is largely copied, with due acknowledgment, from the krbe des battailles of Honoré Bonet. Both Bonet and Christine were far in advance of their age in humanitarian sentiments, but their works were nevertheless highly successful. 5) Bello, an Italian jurist and statesman, who published an important work entitled De re militari et de bello about 1558. 6) Victoria (1480-1546), a Dominican monk and professor at Salamanca, whose thirteen Relectiones theologiece were first published in 1557. Two of these, the fifth entitled De Indus and the sixth De jure belli, deal with the rights of the Indians and the laws of war. Victoria is probably the first modern thinker who conceived the idea of a society or community of nations based upon natural reason and sociability. It was Victoria who first used the phrase, jus inter gentes. He set up the doctrine of the solidarity and interdependence of states and placed the rights of the Spanish in the Indies upon the natural rights of commerce and communication. 7) Ayala (1548-84), a military judge in the service of Philip II, who published a treatise in 1581 on the laws of war and military discipline. 8) The great Spanish Jesuit Suarez, who published his Tractatus de legibus in 1612. In a famous passage, which is translated by Westlake (see Chapters, pp. 26-27), Suarez for the first time clearly states the view that each state is a member of an international community or society of nations which are bound together by the necessity of mutual aid and communion. He also distinguished clearly between international law (jus gentium) and the law of nature (jus naturale). 9) Gentilis, a Protestant Italian jurist, who was appointed profescor of civil law at Oxford in 1688. His chief work, De jure belli, which was published in 1598, and re-edited by Professor Holland in 1877, furnished the model and framework for the first and third books of Grotius’ De jure belli ac pacia. Gentilis is undoubtedly the most important of the forerunners of Grotius, but lacks the idealism, passion for justice, and broad humanitarism of the latter. He is the founder of the historical school of international jurists, and is also in some other respects (as, e. g., his advocacy of the rights of neutrals) in advance of Grotius.

On the Precursors of Grotius, see especially the voluminous researches of Nys, more particularly his Le droit de la guerre et les précurseurs de Grotius (1882) ; Les Origines (1894); Etudes (1896 and 1901), passim; and Le Droit Int., 11, 213-232. See Les Fondateurs de Droit Int. (1904), ed. by Pillét for studies of Victoria, Gentilis, and Suarez. See also Holland’s Studies (1898) and West-lake’s Chapters (1894) for valuable studies of Ayala, Suarez, Gentilis, etc. Walker’s History and Science of Int. Law, passim; Rivier, in Holtzendorff Handbuch I, § 85; Wheaton’s History (1845), Introduction; and Kaltenborn, Die Vorläufer des Hugo Grotius (1848) contain much valuable information.

On the History of Int. Law since the Peace of Westphalia, see especially 1 Akorta, Cours de droit int. pub. (1887), ch. 6, §§ 3-4; Alvarez, Le droit int. américain (1910) ; Bax, Essai sur l’évolution de droit des gens (1910) ; De Boeck, De la propriété ennemie sous pavillon ennemie (1882), 1-153; Brie, Die Fortschritte des Völkerrechts seit dem Vienna Kongress (1890); Hosack, Rise and Growth of the Law of Nations (1882), chs. 8-10; Laurent, Etudes sur l’humanité, Vols. X-XVIII; 1 Kleen, De la neutralité (1898), Introduction historique, 1-70; Leseur, Introduction, §§ 41-59; 1 Mohl, Geschichte and Litteratur der Staats-wissenschaften, 337-475 (1885); #Nys, Etudes, esp. I, 318-406; on “La revolution française et le droit int.; “ #Ompteda, Litteratur des Völkerrechts (1785) ; Pierantoni, Die Fortschritte des Völkerrechts im XIX Jahrhundert (1899, trans, by Scholz) ; #Wheaton, History of the Law of Nations (1848), passim; ibid., Histoire des progres du droit des gens en Eurcpe (4th French ed. 1865).

Among the treatises which deal with the subject in a more or less satisfactory manner are #Bonfils-Fauchille, Calvo, Chrétien, Despagnet, Fiore, Halleck, F. de Martens, Mérignhac, #Nys, and Taylor.

On the history of the science of international law, see 1 Alcorta, Cours, eh. 7 ; 1 Mohl, Geschichte und Litteratur der Staatsswissenschaften (1885), 337-475; #Nys, Le Droit Int., 213-328; #Ompteda, Litteratur des Völkerrechts (1785), passim; #Nys, Notes sur l’histoire dogmatique et literaire de droit int. en Angleterre (1888); ibid., Les theories politiques et le droit int. en France jusqu’an XVIII siècle (1899); ibid., Etudes, passim; Les Fondateurs du droit int. (1904), od. par Pillét; Rivier in Holtzendor’ffs Handbuch, §§ 85-123; Walker, The Science of Int. Law (1893), passim; Wheaton, History (1848), passim. Among the treatise, see #Bonfils, Calvo, #Fiore, Halleck, Manning, Martens Nys, #Oppenheim and Taylor.

For bibliographies, see #Bonfils, Mohl, #Nys, Ompteda, #Oppenheim, Rivier in Holtzendorff, and #Olivart, Bibliographie de droit int.

For treaties, see the collections and summaries contained in Dumont, Flassen, Gardner, #Hertslet, Koch, #Martens, and the #Archives Diplomatiques. See also Supplements to this Journal, the volumes on the Foreign Relations of the United States, published as House Documents, the British and Foreign State Papers, the Partiamentary Blue Books, and the documents published in the Revue générale de droit int. public and the Zeitshrift für Völkerrecht, etc.

The leading available periodicals on international law are as follows: American Journal of International Law (since 1907) ; Revue générale de droit international public (since 1894) ; Revue de droit international et de legislation comparée (since 1869) ; Zeitschrift fur Völkerrecht und Bundesstaatsrecht (since 1907) ; and the Annuaire de l’Institut de Droit Int. (since 1877).

Valuable articles and notes on international law also frequently appear in the American Law Review, the Green Bag, the Law Quarterly Review, the Law Magazine and Review, the Journal of the Society of Comparative Legislation, the American Political Science Review, the Archiv für öffentliches Recht, the Annalen des deutschen Reiches, and the Revue de droit public et de la science politique.

On the jus naturale, see Ahrens, Das Naturrecht (1846); #Bryce, Studies, Essay, XI, 546-606; Burlamaqui, Principes du droit naturel (1747), passim; Carlyle, History of Mediœval Political Theory, passim; Clark (A. I.) on “Natural Rights” in 16 Annals of Am. Acad. Soc. and Pol. Sci., 212-216; #Dunning, Political Theories, Ancient and Mediœval and From Luther to Montesquieu (2 vols.), passim; Gierke, Johannes Althusius und die Naturrechtlichen Theorien, passim; Hibben in 4 Int. J. of Ethics, 133-160; Holland, Jurisprudence (10th ed.), 6, 30-38; Lorimer, The Institutes of the Law of Nations (1883), in 2 vols., passim; 2 Lowell, Government of England, 477-88; #Maine, Ancient Law (Pollock’s ed.), chs. 3 and 4, and Pollock’s note in Appendix; Mackintosh, The Law of Nature and Nations (1828) (see also his Miscel. Works, 27-43) ; Miller, Philosophy of Law, Appendix A, 376-83; Pollock, Expansion of the Common Law; Pulszky, Theory of Law and Civil Society, ch. 4, 77-83; #Ritchie, Natural Rights, espec. ch. 5; Rutherford, Institutes of Natural Law (1832, 2d Am. ed.), espec. Bk. I, chs. 1, 2 and 5, and eh. 9 of Bk. II; Salmond in 2 Law Quarterly (1895), 121-43; Taylor (T. W.) in 1 Annals Am. Acad. Soc. and Pol. Sci. (1891), 558-85; #Voigt, Das jus naturale et gentium der Römer (1856), in 4 vols. passim; Walker, History, passim; #Willoughby, Political Theories, 249 ff, and 281 ff.; ibid., The Nature of the State, ch. 5, 89-115.