from express decrees; and that the end and aim of these rules has been to safeguard the liberty of all men by guaranteeing system to all, that is to say, harmonious action. Throughout each successive phase of civilization the duty of applying these rules has been confided either to parties actually interested who had recourse to force, or to arbitrators chosen by the parties, or finally, to judges who derived their jurisdiction from a superior authority. That loyalty which is inherent in mankind and which an appreciation of his own interest tends to develop results in the general application of the juridical ruling without the necessity of having recourse to some other means for its enforcement. But when the necessity of such action exists sanction is not lacking. At first it is manifested by maledictions or by denouncement as well as by the imposition of penalties; with the march of civilization sanction finds its expression in the infliction of damages, as well as in that of punishment, such as imprisonment. This power necessarily varies as do the authorities charged with exercising it. Certain sanctions are so ill-defined as to be scarcely perceptible. The weight of public opinion is frequently sufficient to bring about a given result. When civilization reaches a high stage, men fulfill their juridical duties without even considering the question as to whether or not they are obliged to do so. Law does not necessarily mean constraint; it is an error to say that Recht ist zwang. Such a conception is the result of imperfect vision. Law even if broken, even if crushed under foot, is none the less law.

The fields of law are varied and distinct. Next to the domains of private law come those of public and international law; and it goes without saying that the progress of all three has not maintained an equal pace. While in the domain of private law, people who have reached a complete state of civilization can point with pride to laws clearly set forth, to tribunals perfectly organized in all things that concern their jurisdiction, and in their utter freedom to expound the law, and to a complete civil and penal system, the same claim may not be made on behalf of public law, already on a firm foundation to be sure, but where the constitutional pact has not always defined with precision the judicial method by which the respect of institutions

shall be assured, and where recourse to warlike methods to be employed even against the subjects of the state, is still authorized under the name of martial law. Nor can the same claim be made on behalf of the international law, in which there still remain, doubtless, gaps to be filled, but in the field of which there has appeared, in modern times, a spirit zealous for reform, and a desire to introduce those improvements which are so necessary, and to complete the scope of juridical authority.

A splendid picture is revealed by the contemplation of the history of law, and of the successive phases of the development of human genius coming down, step by step, through the ages; the study reveals rich vistas of research, and the juridical institutions of nations constitute, among all the attributes of civilization, the highest symbols of modern progress. This is true with regard to both private and public law; it is also true with regard to the law of nations. It must be admitted that the latter has not yet reached the state of development attained by private and public law, but that its development is a vital fact can not be denied; and it may be confidently stated that the question of whether or not international law is real law must be answered in the affirmative, and the theory that the combination of rules which regulate the relations of states are only binding in a moral sense on the members of the family of nations must be discarded.

According to John Austin, James Mill, and John Stuart Mill, jurisprudence included simply positive law, that is to say, law which is established by political superiors. They discerned the existence of two fundamental ideas in the notion of positive law: that of commandment, that of sanction. They took the ground that international law failed to embrace the requisite qualifications, viewed either from the standpoint of the power which enforced it, or from the standpoint of sanction. As we shall have occasion to point out, this idea of the intrinsic nature of law was incomplete, and due to the misconception of its historic formation. But the erroneous view was shared by others besides philosophers. It was long maintained by statesmen as well, and a striking example thereof appears in the statement in

the House of Lords by the Marquis of Salisbury, not twenty-five years ago: "International law," said he, “has not any existence in the sense in which the term law is usually understood. It depends generally upon the prejudice of written text-books. It can be enforced by no tribunal, and therefore to apply to it the term law is to some extent misleading." The noble lord desired in these terms to demonstrate the futility of the efforts of those who were advocating the establishment of a court of international arbitration. The words were spoken in July, 1887; twelve years later, the First Peace Conference which united at the Hague the representatives of twenty-six states, adopted the Convention for the Pacific Settlement of International Disputes, and announced the wish of the Powers to organize a permanent court of arbitration, accessible at any time.

III. FIRST MANIFESTATIONS OF LAW IN THE ANCIENT CIVILIZATION

"At the commencement of civilization," wrote Marcellin Berthelot, "all knowledge assumes the form of religion and mystery. Every action was attributed to the gods, identified with constellations, with unusual celestial and terrestrial phenomena, and with all the forces of nature. No man would have dared at that time to carry out a political, military, medical or industrial task without having recourse to sacred formula, the purpose of which was to obtain the good will of the mysterious powers which governed the universe." Law in its development was not free from these influences. In its first phases it was connected with magic and religious practices. Magic consists in the belief in the force which produces results against the course of nature; religion proceeds on the theory that man is dependent upon divinities and owes them his worship. Even the religious monotheists admitted that their God had created magical energy and that he permitted mankind to employ it. Only, as Edward Westermarck remarks: "Besides this sort of magic, there is another kind witchcraft, in the narrow sense of the term which is ascribed to the assistance of exorcised spirits, regarded not as the willing agents, but as the adversaries of God, and this practice is naturally looked upon as highly offensive to His feelings."

To revert to the subject of law, it appears that in Babylon sanction was furnished by means of sacred emblems and maledictions; the question of religious protection had not yet arisen. Other civilizations did not fail to fall within the sphere of this fatal influence. Amongst all the nations of remote antiquity the practice of magic had full play; incantations and proceedings for the purpose of obliging parties to respect their engagements or to submit to sentences, are to be found in large numbers; they consist above all in pronouncing denunciations against the offender. For the purpose of proving the truth, modern law has concentrated its energies in establishing a system of proof, that is to say, reasonable methods of affirming or denying such or such a state of facts. According to the famous naturalist, Lamarck, judgment in its broadest sense is "the total result of comparisons made by the mind between the various differing ideas." In the primitive societies "ordalies" were preceded by exhortations. "It was constantly supposed," writes Maxime Kovalewsky, “that a force unknown and independent of the human will would come to the rescue of the weakness and spiritual blindness of the judge, and would disclose to him truths for which he would search in vain unaided, except by the limited means which he himself possessed." Let us not forget that the influence of ancient magic practices was felt with more or less force even in modern times. The French author, Huvelin, describes the significance of the oath in the following wellchosen words:

The affirmative oath, the oldest known by which the party sworn agrees to bear witness to the truth of an allegation regarding a past fact, has a religious character. It includes complex rites, and often a sacrifice. It is looked upon as a judgment of God; if he who takes it perjures himself, God may smite him upon the instant. The promissory oath by which a party binds himself with regard to a future act appears at a more recent date, and only has a religious significance for the party himself. In connection with an adjuration to the Gods, and at times, with sacrificial rites, it partakes of a conditional malediction, expressed or unexpressed, pronounced by the party against himself in the case of perjury. This malediction gives to the promissory oath an aspect more magical than religious. Almost all oaths have become promissory in the course of time, such as oaths of fidelity (allegiance), the oath administered by the magistrate, the juror's oath. The oath given by the witness

assumes this character only when witnesses cease to assume the part of conjurors bringing unconditional support to the defender, and become merely persons who promise to tell the truth.

A famous English jurist, Sir Frederick Pollock, has shown how the religious history of the obligation has repeated itself in the history of English law in the Middle Ages. He says:

It is certain that in England up to the fifteenth century obligations were more or less religious. The civil bond was of meagre obligatory force. This was followed by the oath or the fides facta, which was very nearly the same thing. The violation of the fides facta constituted an ecclesiastical crime, which brought about spiritual censure, excommunication, etc. That was the situation up to the fifteenth century, but the secular tribunals became aware that they were losing their cases; thereupon, a series of very ingenious fiction was introduced.

It is unnecessary to recall the fact that in the Middle Ages the oath was the great moral guarantee of conventions between Christian princes. A religious atmosphere surrounded international pacts; the claims of the Church, which was anxious to confer jurisdiction upon its tribunals, were solemnized by invocations to the divinity contained in the texts themselves, by religious ceremonies and by the taking of oaths. A doctrine was sought to be established whereby every breach of international law was to be considered a litigation in which the ecclesiastical judge might intervene, simply and solely because the question of peace was in issue. In the fifteenth century Martin of Lodi wrote:

The Pope has the power to force princes to respect the terms of a peace which has been concluded; the crime of breach of the peace amongst princes originates in the ecclesiastical courts.

It must be remembered that in the social organization which characterized the first ages of humanity, the application of juridical rules is seldom to be found. There was scarcely any occasion therefor in the internal administration of the clan. In fact, it may be said that the first indications of law taken chronologically are those of intertribal law. It was between tribe and tribe that contact was produced, and even here, actions which to-day are considered culpable and criminal appeared just and meritorious. Ravishment or theft assumed