pendence and individuality of nations and as a remedy seems not only impracticable but liable to be worse in its workings than the disease which it endeavors to cure. TOPICS AND REFERENCES 1. Nature of International Law Walker, "Science of International Law," chaps. I and II. Oppenheim, "International Law," vol. I, 2d ed., 3–9. Halleck's "International Law," Baker's ed., vol. I, 50, 51. 2. The Propriety and Significance of the Term "International Law"Holland's "Jurisprudence," 10th ed., 380, note. Wheaton's "International Law," par. 12. Hall, "International Law," 6th ed., 13-16. 3. International Public Law, International Private Law, or Conflict of Laws, the Comity of Nations, Diplomacy, International Ethics W. E. Hall, "International Law," 6th ed., 118, 119. Wharton's "Conflict of Laws." Foster's "American Diplomacy," 2, etc. 4. International Law Compared with Municipal or National Law— Moore's "Digest," vol. I, pars. 1 and 2. Holland's "Jurisprudence," 10th ed., 40 and 58. Walker's "Science of International Law," 46-52. 5. International Law Part of Municipal Law Oppenheim, "International Law," 2d ed., vol. I, pars. 20-25. Moore's "Digest, International Law," vol. I, 2-4. Maine's "International Law," 36, etc. 6. Codification of International Law— Higgins's "Hague Peace Conferences," 8-17. Holland's "Studies," etc., 59-78. Oppenheim, vol. I, 2d ed., 35-44. 7. Observance of International Law Higgins, "Binding Force of International Law." Hall's "International Law," 6th ed., 215. Moore's "Digest," vol. VI, par. 987. Oppenheim, vol. I, 2d ed., par. 156. CHAPTER II THE SOURCES OF INTERNATIONAL LAW. THE EARLY INTERCOURSE OF PEOPLES 12. The Original Motives and Causes of International Law. -International law, properly so called, as it exists in modern times, is the law regulating the intercourse of sovereign states. As a consequence, the science of modern international law did not exist in the times of antiquity and of the Middle Ages, before sovereign states were known or existed, with their independence and equality and consequent rights and duties. But in the early times mentioned there did exist intercourse between the peoples and nations as then existing, and from that intercourse grew certain rules, codes, and usages which served, in a way, the purposes of such intercourse and have since gone into the making of modern international law. From this intercourse and from the motives and causes of this intercourse we can then find the fountainhead of international law. These motives can be said to be due to the needs and to the social and communal spirit of mankind, which existed from the beginning until the present time. It is true that these rules and customs were sometimes religious in their nature and origin and sometimes a result of humane instincts for the mitigation of the horrors of early warfare, but most frequently they were the outgrowth of the human need for co-operation and social intercourse which had gradually extended from groups of human beings and families to communities, cities, and so-called nations. These combinations, by further extension in modern times, brought into exis pendence and individuality of nations and as a remedy seems not only impracticable but liable to be worse in its workings than the disease which it endeavors to cure. TOPICS AND REFERENCES 1. Nature of International Law Walker, "Science of International Law," chaps. I and II. Oppenheim, "International Law," vol. I, 2d ed., 3-9. Halleck's "International Law," Baker's ed., vol. I, 50, 51. 2. The Propriety and Significance of the Term "International Law”— Holland's "Jurisprudence," 10th ed., 380, note. Wheaton's "International Law," par. 12. Hall, "International Law," 6th ed., 13-16. 3. International Public Law, International Private Law, or Conflict of Laws, the Comity of Nations, Diplomacy, International EthicsW. E. Hall, "International Law," 6th ed., 118, 119. Wharton's "Conflict of Laws." Foster's "American Diplomacy," 2, etc. 4. International Law Compared with Municipal or National LawMoore's "Digest," vol. I, pars. 1 and 2. Holland's "Jurisprudence," 10th ed., 40 and 58. Walker's "Science of International Law," 46-52. 5. International Law Part of Municipal Law Oppenheim, "International Law," 2d ed., vol. I, pars. 20-25. Moore's "Digest, International Law," vol. I, 2-4. Maine's "International Law," 36, etc. 6. Codification of International Law Higgins's "Hague Peace Conferences," 8-17. Holland's "Studies," etc., 59-78. Oppenheim, vol. I, 2d ed., 35-44. 7. Observance of International Law Higgins, "Binding Force of International Law." Hall's "International Law," 6th ed., 215. Moore's "Digest," vol. VI, par. 987. Oppenheim, vol. I, 2d ed., par. 156. CHAPTER II THE SOURCES OF INTERNATIONAL LAW. THE EARLY INTERCOURSE OF PEOPLES 12. The Original Motives and Causes of International Law. -International law, properly so called, as it exists in modern times, is the law regulating the intercourse of sovereign states. As a consequence, the science of modern international law did not exist in the times of antiquity and of the Middle Ages, before sovereign states were known or existed, with their independence and equality and consequent rights and duties. But in the early times mentioned there did exist intercourse between the peoples and nations as then existing, and from that intercourse grew certain rules, codes, and usages which served, in a way, the purposes of such intercourse and have since gone into the making of modern international law. From this intercourse and from the motives and causes of this intercourse we can then find the fountainhead of international law. These motives can be said to be due to the needs and to the social and communal spirit of mankind, which existed from the beginning until the present time. It is true that these rules and customs were sometimes religious in their nature and origin and sometimes a result of humane instincts for the mitigation of the horrors of early warfare, but most frequently they were the outgrowth of the human need for co-operation and social intercourse which had gradually extended from groups of human beings and families to communities, cities, and so-called nations. These combinations, by further extension in modern times, brought into exis tence the general association of civilized states known as the family of nations, with its laws and usages. Phillimore says of this extension, that " to move and live and have its being in the great community of states is as much the normal condition of a single nation as to live in a social state is the normal condition of mankind."1 13. The Sources of International Law. In addition to the causes just mentioned, from which originated early international usage and intercourse, there are other sources to which modern international law owes its formation and growth. The first source, then, of international law, in the opinion of the writer, is (a) Customs and rules of peoples and nations in early days. Concerning this, Professor Moore says: "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."2 In previous paragraphs allusion has been made to the existence of rules and customs accompanying the mutual intercourse of peoples in war and peace in the earlier days. These will be referred to later, when dealing with the history of the international relations of antiquity, and though the rules of war especially were more cruel and drastic than now, still we will find certain elementary usages which are not unfamiliar to us even in the present century. The various sea codes and laws previously mentioned can be classed among the rules to which reference is made. As a second source can be named (b) The treatises of the great publicists, such as Grotius, Gentilis, Bynkershoek, Vattel, and others of earlier times. The great work of Grotius, entitled "De Jure Belli ac Pacis," was published in 1625, in the early days of the Thirty Years' War, and its publication and reception marks a period in the history of civilization. Grotius has been called the father of inter1 Phillimore, vol. I, par. 7. 2 Moore's "Digest," vol. III, p. 2. |