THE DEVELOPMENT AND FORMATION OF INTERNATIONAL LAW * [CONTINUED FROM THE JANUARY NUMBER.] We have seen that in private law the Canonists and Romanists made open war on custom, and took sides against it on behalf of the written law the formal, written word, emanating direct from the will of the supreme authority. Custom has contributed a large number of rules to the law of nations. To the examples already given we may add the formalities of treaties and the necessity of ratification; rules which appear in the thirteenth and fourteenth centuries of our era, and in accordance with which the signature of the plenipotentiaries does not make conventions binding in the absence of their confirmation by the supreme authority. Hand in hand with laws, edicts and decrees, which together form the " consular laws," custom is still to be found in so far as regards the laws in force in the European and American States, over the territory of different important political communities, such as the Ottoman Empire, various Asiatic Powers, and certain African governmental communities. Is it necessary to recall that almost all of the laws of war are the result of customs recognized during hundreds of years, and upon which intellectual and moral progress has not ceased to exert a beneficent influence? It was not so very long ago that writers finding their justification in custom alone felt that they were safe in asserting the soundness of the obligatory principle of treating prisoners with humanity, of no longer inflicting injury upon unarmed enemy subjects, who are taking no part in the hostilities, and to respect in conquered territory private property belonging to the enemy. * The JOURNAL is indebted for this translation to Mr. Clement L. Bouvé, of the Bar of the District of Columbia. In truth, the "good usages of war" were of binding effect long before extended efforts of a political character succeeded in causing them to be solemnly adopted and proclaimed by the peace conferences held at The Hague in 1899 and 1907. In the terms of the Hague Convention of July 29, 1899, dealing with the laws and customs of war, substituted and amplified by the Convention of October, 1907, the parties thereto agreed that in cases not included in the regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience. The vast sum of the rights and duties incident to neutrality has been, little by little, assembled, thanks to the continued observation of certain maxims, to the growth which they have acquired through the course of ages, and to the care which nations took to invoke precedents for the purpose of obtaining logical results. Guillaume de Garden writing in 1833, spoke as follows: Let us imagine a diet of peoples gathered together for the purpose of working upon a common code the rights which custom had already established would remain the basis of legislation, just as they do in the case of individual citizens. ** * * It would be impossible to build up a positive law based on a collection of individual national conventions, however closely related they might be. These pacts cannot constitute material for building up the science unless they show what has been recognized as their foundation, which is neither more nor less than custom. The latter, or the deductions drawn therefrom in order to apply them to analogous cases, are therefore the only source of international law. James Lorimer says that "in every department of jurisprudence, custom or usage is the earliest form in which positive law declares itself." He adds that even an antiquated or obsolete custom has always something to teach. It always has a meaning. No custom is ever a pure mistake, as is the case with many theories and with the doctrines which rest on them. * * To a very considerable extent, the art of legislation consists in applying to customs a test which they partially supply, and its importance becomes apparent when we reflect that the effect of a legisla * |