by men as members of different states, even when they declare doctrines the reverse of cosmopolitan. "And whether it be by comity, whether it be of grace, or whether it be of fear, civilized peoples in fact do take into account the existence of systems of law other than their own."1 2. The Term "International Law."-The term international law was proposed about the year 1780 by Jeremy Bentham, an English writer, in a work upon the subject of "Morals and Legislation," as the proper expression to cover the same ground as the phrase "laws of nations" in English, the Droit des Gens or Droit international in French, and Völkerrecht in German. It will be used in this book in common with the expression "the law of nations" and as a synonymous term. Both expressions, but especially that of international law, have been criticised by various English and other writers, generally upon the ground that, states being independent, a rule which is observed between states or nations is, in so far as it is international, not properly a law, while, in so far as it is properly law, it is not international, the term international law thus involving, it was said, a contradiction. The principal critic of this term was Mr. John Austin, a learned English jurist, and the criticism was made especially in his work upon "the principles of jurisprudence and terminology." Without entering into the question of the Austinian theory of law and that of other writers upon the same subject, it can be said that the term has made its way into the language and terminology of the subject and superseded to a great extent the older term of the law of nations. In regard to the significance of the term, Walker says very truly and succinctly that "rather let us have peace and peacefulness without the blessings of neat terminology than precise language and therewith the spirit of lawlessness. It is well to have a formally faultless science of jurisprudence; it is better to have 1 Walker's "Science of Int. Law," pp. 50, 51. English-speaking peoples displaying ready obedience to the dictates of honor, justice, and proved utility enshrined in the rules known as the law of nations, or international law." 1 or 3. International Law to Be Distinguished from Other Named Subjects.—International law, or international public law, should be distinguished from other international subjects which, though somewhat related, cover to a more or less degree different purposes. These are international private law, the conflict of laws; international comity, or the comity of nations; international state policy, or diplomacy; and international ethics, or international morality. By defining these subjects in the following paragraphs, we will make the necessary differentiation of the subjects. 4. The Conflict of Laws, or International Private Law.International private law, or, preferably, the conflict of laws, comprises the rules and principles used in deciding cases of private rights which arise from conflicting national systems of law. These rules and principles derive their force from the municipal law and sovereignty of the state which administers them and affects individuals only. Under these rules municipal courts decide upon the jurisdiction of the case and "by what national force it is just that it should be decided."2 In the United States the various States of the Union are regarded as sovereign from the point of view of the conflict of laws. In general, international private law relates to questions such as those of citizenship, minority, legitimacy, lunacy, the validity of foreign marriages, wills, and contracts, and to the limits of national jurisdiction in private cases. The prevailing principle is that the jural capacity of a person is determined by the law of his domicile.3 5. International Comity, or the Comity of Nations. The comity of nations comprises those acts, usages, and rules of good-will, etiquette, and courteous treatment that are due from 1 Walker, "History of Law of Nations," p. 19. 2 Hall, 6th ed., p. 51. Woolsey, 6th ed., p. 105. one nation to another and which are based upon mutual selfrespect. These matters are generally observed without being concerns of rigid obligation unless made so by treaty or conventional agreement. The etiquette existing and observed between nations, although not international law, is a concomitant and almost, if not quite, as binding. The use of formal and more or less defined courtesy between sovereign and other states causes the prevention of jealousies and disputes, while it is true, on the other hand, when the usages are once established, that to withhold such courtesies is a slight and causes friction. But, on the whole, as in a human society, it is probable that without these courtesies there would be a greater amount of existing unfriendliness.1 Included in this comity of nations are the courteous relations existing between men-of-war of different nations and the system of honors and salutes afloat and ashore. They are now a matter of international arrangement, though less exacting than formerly. It has been well said of them by Ortolan, a French writer, that they are of use as honors paid to the independence of nations, as a public, authorized recognition that the sovereignties of the world are entitled to mutual respect. They encourage the personnel of public vessels, from the commanding officer down to the seaman of the lowest rating, to feel that the national honor is in their hands and thus raise the sense of character of those who are its representatives abroad or upon the high seas.2 6. International State Policy, or Diplomacy.-Diplomacy, according to Bernard, "means, in its wider sense, the art or science, real or imaginary, of foreign politics-in its narrower acceptation it stands for the art, or imaginary art, of negotiating, or for negotiation itself considered as a business or employment." The word diplomacy, or its equivalent in French, is of no earlier date than the French ministry of Vergennes. 1 Woolsey, 6th ed., pp. 118, 119. * Ortolan, "Diplomatie de la mer," pp. 316, 332, 345. It is well to quote, in treating of this subject, the following extracts from the preface of the scholarly "History of Diplomacy" by our countryman and diplomatist, Doctor D. J. Hill. He says: "It is, perhaps, at present worth the effort to point out the fact that the fixed legal and conventional relations between modern states are as firmly grounded in public needs and fundamental principles as the constitutions of the different countries which compose the international system. It is true that force has been a determining element in the conflict of nations, as it is in the maintenance of civil order within the state; but it is not mere aimless or undirected force that has produced the present international system. On the contrary, it is due to the gradual perception of the conditions on which human governments can be permanently based. It is the result of reasoned policy and deliberately formed conventions in restraint of force the triumph of statesmanship and diplomacy not shaped and determined by military action but controlling the movements of armies and navies whose coercive powers are put in action only by decisions reached after deliberation at the council-board." 1 Bulmerincq in a cogent way makes a discrimination between international law and international policy when he says: "Law leaves no choice; policy keeps open various means to an end and permits a free choice in respect to these." 2 7. International Ethics.-International ethics has been defined as the principles which should govern international relations from the higher point of view of morality, justice, and humanity.3 As a background, however, to the crystallized codes and usages of international law there should always be international ethics. Although Woolsey does not favor any distinc 1 Hill, "History of European Diplomacy," vol. I, Preface, p. ix. • Hershey's "Essentials of Int. Law," p. 2. tion being drawn between international law and international ethics, nevertheless his words used in discussing the general question express to an extent the actual difference between these moral and jural spheres. He says: "The advantage of separating international law in its theoretical form from the positive existing code depends not on the possibility of constructing a perfect code according to a true theory but on the fact that right views of justice may serve as a touchstone of actual usages and regulations; for in all jural science it is most important to distinguish between the law as it is and as it should be." 1 An elevated opinion of the connection between the two is given in a speech made by John Bright in the British House of Commons in his explanation of his resignation from the ministry after the bombardment of Alexandria in 1882. He said: "The House knows that for forty years at least I have endeavored to teach my countrymen an opinion and doctrine which I hold, namely, that the moral law is intended not only for individual life but for the life and practice of states in their dealing with one another. I think that in the present case there has been a manifest violation both of international law and of the moral law, and therefore it is impossible for me to give my support to it." 2 8. 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 lawmaking 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 is never abrogated nor suspended by them in time of peace or war.3 1 Woolsey's "Int. Law," p. 3. 2 Trevelyan, "Life of Bright," p. 426. Stockton, "Manual of Int. Law for Naval Officers," p. 13. |