low, what he is worth, and when an expectant country, vitally concerned in the issue, will award the prize due to his bravery. 7. The cause of War which is often the most patent one, and therefore has attracted more attention than is, pernational Law, haps, really due to it, is the existing condition of International Law. This cause admits of more di State of Inter most common ly recognized cause of War. rect treatment than any of the causes above examined, and therefore it is natural that many persons, deeply persuaded that all War must come to an end sooner or later, have directed their main attention to what seems to them the only practicable remedy at present. Nature of International Law. It is well known that, owing to a number of historical and moral causes, the mutual relations to each other of the States of Europe, and of other States directly affiliated to them, have gradually evolved certain definite rules of action which, in public profession at least, have an obligatory force on the several States concerned. These rules are closely analogous to the rules of national law, and, in fact, largely trace their origin to the ideas, the structure, and the language of Roman Law. Nevertheless, in many obvious respects-as in the absence of a Legislature, of Courts of Justice, and of an Executive Authority-these rules noticeably contrast with national law. According to some writers (as the late Mr. Austin) these points of contrast are sufficiently serious to rob these rules of all title to the name law. Not coextensive with International morality This is a question, in a great measure, of terminology, and it is equally true that these rules have no greater title to the name which Mr. Austin is ready to concede to them, that of morality. Few people would, nowadays, deny that States have moral obligations toward each other of a far wider and deeper kind than any which could be contained in the sharply defined language of a formal rule. In fact, the relation of International Morality to these rules indi but related to tional Law is. its rules. cates a fresh ground of analogy.between these rules and national law. National law is never identical, or even coextensive, with morality, but it is the constant tendency of a progressive State to bring its law into harmony with the requirements of morality as understood at the day. Thus it is an intellimorality as Na- gible effort of terminology to designate the rules which, in the region of international society, bear a relation to international morality exactly corresponding to the relation which national law bears to national morality, by the same name of law. But, in spite of the real and undoubted efficacy of the rules of International Law, and their close parallelism with the rules of national law, it is none the less true that the rules of International Law are infected, at many Vagueness of points, with a peculiar measure of uncertainty; that, even where the form of the rule is certain, the interpretations that may be set upon it are numerous, conflicting, or ambiguous; and that, even when the meaning of the rules is clearly ascertained, the purport of them by no means, as yet, corresponds to the requirements of morality, expediency, or justice. The rules of International Law, as explained by the most comSources of Inter- petent authorities, are said to be founded partly in the actual or implicit consent of States, and States, and Law partly in the deductions which, it is said, are capable of being drawn from a so-called Law of Nature. Some writers are rather disposed to rely upon the former of these sources, and others rather on the latter. Perhaps a meeting-point of the writers who look mainly to the consent of States, as ascertained from their express conventions, or their tacit usages, and of those writers who are prone to refer mainly to the prescriptions of some abstract rule of right, however designated, may be found in the statement that the rules of International Law are such rules for the conduct of States, in their mutual relations, as they have sanctioned by express or tacit consent, and do not conflict with the requirements of International Morality, national Law. Consent of of Nature. as those requirements are understood at the day. Thus an alleged rule of International Law must satisfy two conditions in order to maintain its validity. It must be the product of the actual or the tacit consent of States; that is, it must have been generally agreed to by treaty, or constantly observed in practice; and it must be in harmony with a scheme of International Morality, which is variously styled the Law of Nature, the Law of God, Abstract Justice, the Law of Right, Reason, and the like. Difficulty of forming distinct rules When it is remembered how comparatively rare, in past times, have been the points of contact of Eastern States otherwise than by War, in what a desultory way the intercourse between the States has been conducted, how fragmentary and imperfect is the evidence of that intercourse, and yet how indefinitely extended in some directions is the field from which the International Lawyer has to glean his proofs of usage and consent, it does not seem surprising that the whole region of International Law should be one of uncertainty and conjecture. But when to this are added the intricacy and depth of any problem which depends for its solution upon a true and exact view of Abstract Morality as binding on States, and the difficulties inherent in the interpretation of the documentary conventions which are alleged to afford evidence of consent, the uncertainty attaching to the most elementary rule of International Law begins to rise to a very high pitch. This sort of Law shares all the notorious uncertainty which cleaves to rules of national law, besides possessing a special uncertainty of its own, through the absence of express legislation, the paucity of the instances on which conclusions or analogies can be based, and the variety of the national languages, manners, and proclivities amidst which the Law has grown up. International Law is, however, not merely infected with an inherent uncertainty as to the purport and form of its general rules, but, when a rule is clearly ascertained, there are special difficulties in ascertaining whether or not it applies, or to what extent it applies, to a given condition of facts. Of and of determining when they are applicable. course, this is simply a matter for a judicial tribunal, and great and beneficial efforts have been made by particular States to extemporize one, of the nature of a Court of Arbitration, for a special emergency, and the application of a rule of law has been practically settled as between those States. But, apart from such special and temporary arrangements, there is no permanent judicial machinery which is empowered and obliged to decide, authoritatively, the claims of suitor States to expound the bearing of a rule of law on a given state of facts, and to assess the amount of compensation which the invasion of a right equitably demands. In default of such a tribunal, each State is judge in its own cause, a long diplomatic altercation takes place on every occasion of a disputed right, the same learned authorities, treaties, and despatches are cited, with different intents, on both sides, the discussion grows more warm as it is more protracted, and, at last, it is either left undecided, or only decided by bitterly-felt concessions on one or both sides, thereby becoming a rankling sore ready to be opened afresh, it may be years after, and at the most inconvenient and unexpected of times. No authorita tive court of International Law. Very recent history has supplied many painful instances of angry controversies, nearly resulting in War, which have taken their rise in nothing else than unsettled questions of International Law, and less recent Disputes upon unsettled points. history abounds in them. Any reader of Mr. Ward's "History of the Law of Nations" will remember his account of the endless disputes on the precedence of Ambassadors, which threatened to break up the most important negotiations, and were often an imminent occasion of War. These disputes have now been finally set at rest by the simple rules of precedence settled by the Protocol of Vienna of the 19th of March, 1815, and of Aix-la-Chapelle, of the 21st of November, 1818.* Many points of law relative to Ambassadors are, indeed, still unsettled, but it is to be hoped that European States have outlived the possibility of serious differences on such minute questions. Need for an International Court shown in the "Trent" case. In time of War, when the passions even of Neutral States are apt to get inflamed, the uncertainty, of International Law, and the want of an authoritative Court, are especially felt. The "Trent" case has been already alluded to. If in this case the question as to the right of a neutral to carry a belligerent's commissioners from one neutral port to another—and as to the duty of a belligerent captor to take a neutral ship, which he held to be carrying contraband, to the nearest prize court for judgment, instead of removing the contraband and letting the ship go free-could have been submitted at once to a competent Court of Justice, before which both England and the United States would appear as suitors, it is not conceivable that any of the strong feeling would have existed which so nearly gave rise to War. It was the sense of injury, coupled with the doubt as to getting the matter fairly investigated, and the law honestly laid down and applied, which stirred both nations, in an incredibly short time, up to fever heat. People feared that the uncertainty about some of the legal points would throw a veil over the whole injury, and their natural resource was to talk as loudly and fiercely about the matter as they could, in order to compel instant attention. case. แ A somewhat similar result followed in what is known as the The "Alabama" "Alabama" case, from the uncertainty of the law relative to the obligations of Neutral States in the matter of their private citizens building and equipping ships of War for a belligerent, and from the difficulty of instantly bringing the question to a judicial issue. Though there is now little * Manning, p. 107. |