International Law. legislators have been of the noblest, and the Uncertainty of results of their efforts, no doubt, widely beneficent, their method has been one of the causes which has discredited International Law, as a system of actually binding rules. It has come about that neither the subject of the law as it is, nor that of the law as it ought to be made, has been adequately treated; and, when those who professed to be teachers of the law acknowledged themselves uncertain as to the existence of any rules at all wholly out of the region of further debate, there might be an excuse for those who were interested in prolonging a period of uncertainty and confusion, in declaring there was no law at all. course of formation. The Laws relative to War afford a good Laws of War in illustration of these remarks. There is no part of International Law in which the rules are, almost from day to day, undergoing more rapid vacillations; and the proceedings of the Brussels Conference, in 1874, display at once the number of points in respect of which the law is unsettled, and the extraordinary amount of interest which attaches to their settlement. Thus it might be expected that here, perhaps more than elsewhere, the function of the lawyer would almost unavoidably have slidden into that of the legislator. In fact, the two functions cannot be wholly kept apart, because it sometimes happens that the existing rule can only be understood Three legitimate aims of Laws of War. by examining its reasons, or even by setting forth in full the controversies amidst which it hardly maintains its existence. Nevertheless, it is desirable to separate the legislative function from the strictly legal one where it is possible; and this is especially important in respect of a question like that of War, in which so many strong passions, and generous, though uninformed, instincts, are wont to divorce the discussion of it altogether from a regard to the practical difficulties of national life. There are three distinct aims which are usually regarded as being legitimate objects of concern on the occasion of making a proposed change in International Law, or on that of giving increased definiteness and validity to a rule of law which has hitherto been imperfectly appre(1) To mitigate hended and recognised. These aims are (1) mitigation of severity in carrying on War; (2) a reduction in the length and frequency of (3) to pave the Wars; (3) preparation for a time when War shall become obsolete. Though all these aims severity of War; (2) to reduce its frequency; way to its abolition. are recognised as worthy ones, and the pursuit of the two first of them has undoubtedly operated largely in the reform of the law, yet they have been hitherto treated of after a very desultory fashion; they have rarely been handled in relation to each other, the proportionate claims of each have been rarely ascertained, or, when conflicting, reconciled; the importance of these, especially of the last, has not been rated highly enough,so much So, that many readers of standard textbooks would be of opinion that the authors held War to be little more of an evil than a civil law-suit, and the acquisition of territory, or of a commercial advantage, happily and honourably purchased by War. Owing to this levity or confusion of treatment, the whole topic of Neutral rights and duties, with which about a third part of International Law is concerned, has been treated far too exclusively, and far more often, from the point of view of Neutral and Belligerent interests than from its bearing on the length of the War, on the probability of the recurrence of War, or on the promotion of a permanently pacific state of society. Of course the latter considerations have been adverted to, and the consideration of Neutral and Belligerent interests ought to have its weight in the enquiry. The complaint here is that writers on the subject either do not adjust competing classes of considerations, or adjust them in a way which nothing but an habitual indifference to the evil of War in itself, or inattention to its true nature, could explain or excuse. tion of War not It will be replied that a time when War Ultimate abolishall become obsolete, or the frequency of impossible. its recurrence much reduced, is too distant to furnish any guide to the conduct of the Some mis chievous prac tices, once disappeared. The practical politician, or legal reformer. prospect of such a time may invigorate the hopes of the philanthropist, and even console the despondent misgivings of the moral philosopher, but there is much on the face of the civilised world to point to the speedy advent of a season of warfare on an unprecedented scale, and little to suggest the hope of its speedy abolition. If it were conceded that, however distant the time of general and permanent Peace now seems, yet that time may come, and that it should be one of the objects of the International Law Reformer to make that time a reality and to hasten its arrival,—so far as he could work in this direction without jeopardising nearer and more certainly attainable ends of true value,enough would be admitted for the present purpose. But this concession is not a hard one to make, as a little examination into the facts will make clear. 1. In the first place, the teachings of history prevalent, have certainly are to the effect that practices and institutions, which at one time seem to be necessary conditions of the social and political condition of all people, and yet which stand condemned as counter to principles of morality, justice, and political expediency, vanish in an almost inconceivably short space of time, and Judicial become so far obsolete as to be with difficulty Private Wars. *See Stubbs' Constitutional History, vol. I., pp. 179–183. |