were sent; they had to report periodically to their government concerning their work and transactions, and were punished for conversing with other diplomats. These Venetian decrees were soon copied by other Italian citygovernments.

Thus, gradually and imperceptibly there grew up in the Middle Ages an entirely new system of permanent diplomatic missions. From casual and temporary embassies ad hoc, sent to negotiate a certain treaty or discuss a single question, these missions became permanent channels of communication. This meant certainly a very great step forward.

At the same time and under the influence of Louis XI, the French language began gradually to replace the Latin of former days, becoming thus the new means of diplomatic intercourse. With these two new institutions firmly established, we enter into a new epoch, the history of modern Europe.

V. CONCLUSION

The most important conclusion that we can draw from the above narrative is the apparently great age of international law. From the described facts we can infer that international law is as old as human civilization in general, and that it is really a necessary and unavoidable consequence of any civilization. Modern historical research goes far into the ages without having yet discovered the primeval start of human culture; the latter seems to recede constantly further back and with it the beginnings of international obligations. Further, a very interesting point to remember is the fact that all through the ages, international law keeps steadily its basic characteristics, notwithstanding the great changes that take place all over the world. This seems to be another strong proof that international law is an inherent corollary of civilization and invariably comes with any cultural development. It lifts the international institutions above questions of race, nationality or religion, showing and proving unmistakably their all-human qualities. They grow up gradually from custom and usage, similar to any other rule of law, but with this difference, that usually the rule of law develops inside the body politic, while international law grows up outside the state, binding the latter nevertheless in exactly the same way as an individual is bound by the rule of law in the state.

From ancient times too the system of international law, equally as at present, covers two fields, the time of peace, when it chiefly develops under the influence of commercial relations, and the time of war, when by custom it grows up among belligerents. In both cases the essence of the system is identical, namely, the mutual recognition of obligations and the reciprocal observance of certain customs or usages. The antiquity of these institutions in either field cannot now be questioned. As a matter of fact, some of the more ancient civilizations have had better developed ideas of international intercourse than the civilizations of later periods!

The fundamental principle of international relations has been constantly

and everywhere the same, consisting in the mutual recognition of the sanctity of international obligations and contracts. It never made any difference whether such obligations were considered as binding the impersonal state or its chief representative, the king and ruler. In ancient times these two ideas, of state and ruler, were usually identical; and, just as today, the most difficult question seems to have been the one of sanctions. It was not easy at any time to bind the powerful states or conquering monarchs and make them keep their international contracts. Still, antiquity possessed perhaps better guarantees than more recent epochs in the great strength of religious obligations and in the fear of the wrath of gods, which was much more real than in later days.

The second no less important historical principle of international law was the recognition of the necessity of having regularly established channels of intercourse, through which the different international obligations and agreements had to be contracted and established. These channels and means of communication are also of the greatest antiquity; they are found at all times and among all civilizations. In creating these channels, usually called embassies, the states or rulers were bound first of all to recognize them on the principle of reciprocity; secondly, they were forced to respect them, establishing mutual guarantees for the safe conduct of international relations, which invariably grew into systems of mutually recognized immunities and privileges (like the idea of the personal immunity of envoys or ambassadors).

Finally, out of such a mutual recognition of international obligations there grew up unavoidably a third important principle, the idea of a certain equality among the transacting and contracting states or rulers. And, though at times, as in the case of Rome, there seem to have existed exceptions to this general rule, they do not disprove the theory and can be easily explained from the historical point of view by the tremendous advance in culture that the Roman state took in comparison with the surrounding world. Such epochs as the Roman were certainly exceptions. In normal times international relations developed among relatively equally civilized peoples, and thus always bore the unquestionable stamp of cultural and legal equality. It is only in the nineteenth century that this fundamental principle somehow gets lost under the influence of the diametrically opposed idea of the hegemony of the great Powers.

THE CODIFICATION OF INTERNATIONAL LAW*

BY JAMES BROWN SCOTT

President of the American Institute of International Law

There are certain preliminary observations which should be made before we can take up the question of codifying international law or the method of codification, for without a correct understanding of certain matters, which may be considered fundamental, we may not know whether we are to deal with a system of law or a system of philosophy. As a matter of fact we are dealing with both, for law develops unconsciously or consciously in accordance with the principles of philosophy. If the law of nations is to be considered law in the strict sense of the word, we must deal with it as a system of law. If, on the other hand, it is a system of philosophy rather than of law, we must deal with it as philosophy, and the point of approach and the method of treatment will be different. But, above and beyond law, we are dealing with justice, and with those principles of justice, which, expressed in rules of law, we call the law of nations. Justice is the source; the principles of justice applicable to the conduct of nations constitute the law of nations, and the rules of law based upon these principles change with conditions, or to meet new conditions, and form the body and substance of international law at any given period.

Although our conceptions of justice may seem to change with time, place and circumstance, it can nevertheless be said that among the peoples and in the states of European civilization there is agreement as to justice and its principles, and that in the last few centuries there has been a general agreement upon those principles of justice, which, expressed in rules of law, form a safe and sure guide for nations in their mutual intercourse.

There are many definitions of international law, due to the preoccupation of the authors or the point of view from which the subject is approached, but however they may differ in form they are yet one in substance, as it is evident that in all of them we are dealing with a system of law. An eminent English lawyer, who had had experience in the conduct of international cases, asked in an address before the American Bar Association, in its session of 1896 at Saratoga: "What, then, is international law?" and he answered his own question in this way: "I know no better definition of it than that it is the sum of the rules or usages which civilized states have agreed shall be binding upon them in their dealings with one another." Lord Russell, of Killowen, for it is of him we speak, was at that time Lord Chief Justice of England, and he naturally looked upon international law as a part of the law of England, for had not one of his most distinguished predecessors in his * English version of an address delivered in Spanish at the University of Habana, Feb. 8, 1924.

high office said a century and a half earlier that the law of nations was "part of the common law of England."

According to Lord Russell, international law was a series of rules or usages. Perhaps it would have been better to say, "usages of civilized states which had hardened into rules through repeated practice." Indeed, international law was expressly stated to be the law of Christian states, or the law of European states, which at one time amounted to much the same thing. But with the discovery of America and the establishment of the American republics, if the word "European" was to be used, it could only be in the sense that the states accepting it were of European origin or European civilization. At that time they were still Christian states, but with the awakening of the East, with the advent of China and Japan, it could no longer be said with propriety that the law of nations was the law of Christian states or of states of European origin. Hence in our day we have discarded limitations of origin, whether of religion or of geography, and international law is the law of civilized states.

It is to be observed that in the definition of Lord Russell these civilized states have agreed that the rules and usages which he mentions, but does not define, should be binding upon them. This is properly so, because there is no superior among nations to impose a law as there is a superior power within a state. It may be a question whether even within a state law is imposed, but between states it cannot rightfully be imposed by any state or by any group of states. It is agreed to by the civilized states because, in the course of their experience, it has been found to be necessary to have their conduct determined and controlled by certain usages which by acceptance have become rules, the sum total of which, to use Lord Chief Justice Russell's words, "form the body and the content of the law between nations."

This was the definition of a Chief Justice, not in the performance of his judicial duties, but speaking as a lawyer to his brethren of the American Bar. Some ten years later, another English lawyer, acting as Chief Justice of the Supreme Court of Hongkong, had occasion to consider international law in the decision of a case in his court and tried before him. In the arguments of counsel it had been insisted that the so-called "Law of Nations" was not law in the strict sense of the word,-that it was apparently not binding upon the court because of its lack of certain elements thought to be essential to law. It is better, however, to let Sir Henry Berkeley, the Chief Justice, state the objections and to reply to them in his own language. "It was contended," he said, "on behalf of the owners of the Prometheus that the term 'law,' as applied to this recognized system of principles and rules known as international law, is an inexact expression, that there is, in other words, no such thing as international law; that there can be no such law binding upon all nations, inasmuch as there is no sanction for such law, that is to say, there is no means by which obedience to such law can be imposed upon any given nation refusing obedience thereto." This is a fair statement

of the views of those who consider law as something imposed by a superior force by physical power. The Chief Justice, however, did not share their views, and he gave the reasons: "I do not concur in that contention. In my opinion a law may be established and become international, that is to say binding upon all nations, by the agreement of such nations to be bound thereby, although it may be impossible to enforce obedience thereto by any given nation, party to the agreement."

Fortunately for us the Chief Justice did not leave the matter there; he felt that his statement required explanation and illustration. The objections went to the essence of law, and the answer which he gave therefore applies to all law, national or international:

The resistance of a nation to a law to which it has agreed does not derogate from the authority of the law because that resistance cannot, perhaps, be overcome. Such resistance merely makes the resisting nation a breaker of the law to which it has given its adherence, but it leaves the law, to the establishment of which the resisting nation was a party, still subsisting. Could it be successfully contended that because any given person or body of persons possessed for the time being power to resist an established municipal law such law had no existence? The answer to such a contention would be that the law still existed, though it might not for the time being be possible to enforce obedience to it.1

Let us turn from the lawyer addressing his brethren, and from the judge deciding a case, to the publicist, and among the many, I beg to refer you to the late William Edward Hall, whose treatise on international law is likely to be the great classic of the English-speaking peoples. He was of the generation of Lord Russell and of Sir George Berkeley, and a few years before them he had had occasion to consider the binding force of international law, the question of its observance and of its violation. In the preface to the third edition of his treatise, which appeared in 1889, he considered these questions and he spoke as a prophet as well as a publicist. He contemplated the circumstances in which the rules of international law would be tried, tested and violated, but he was sure of the ultimate result. He said:

Probably in the next great war the questions which have accumulated during the last half century and more, will all be given their answers at once. Some hates moreover will crave for satisfaction; much envy and greed will be at work; but above all, and at the bottom of all, there will be the hard sense of necessity. Whole nations will be in the field; the commerce of the world may be on the sea to win or lose; national existences will be at stake; men will be tempted to do anything that will shorten hostilities and tend to a decisive issue. Conduct in the next great war will certainly be hard; it is very doubtful if it will be scrupulous, whether on the part of belligerents or neutrals; and most likely the next war will be great. But there can be very little doubt that if the

1 In re Arbitration between Osaka Shosen Kaisha and Owners of Steamship Prometheus, Supreme Court of Hongkong, 1906, 2 Hongkong Law Reports, 207.