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WORLD POLITICS AND ECONOMICS
International Eastern Question Association. Met at London, February 3, 1906.
The Interparliamentary Union. Organized in 1889, at Paris. 2,000 members (1907). Fourteenth Conference at London, July 23, 1906. Permanent bureau since 1892, at Berne.
International Congress of Economic Expansion. Held at Mons in
International Association of Fairs and Expositions. Met at St. Louis in 1884.
International Zoological Congress. At sixth meeting, in 1904, adopted an international code of zoological nomenclature. Meets at Boston in August, 1907.
International Congress of Ornithology. Held at Paris in 1900.
THE LEGAL NATURE OF INTERNATIONAL LAW1
International law to use Bentham's innovation of 1789, which has found favor with the public, instead of the older, more expressive term, law of nations has been variously denounced and praised as international morality or ethics; international courtesy or convention in the social sense of the word; comity as distinguished from rule of law; or merely and finally as the foreign policy, such as the Monroe Doctrine, which at a particular time happens to catch the fancy of nations. If admitted as law in general or as possessing some of the elements of ordinary municipal law, the principle that pinches is declared not to be law and to have no binding force whatever, because there is no supreme court of nations in which the dispute may be litigated and no sheriff to execute the decree, supposing that one had actually been delivered. But the judgment of a municipal court is not self-executing, as, for instance, when President Jackson stamped his foot, saying: "John Marshall has made the decision; now let him execute it!" The executive officer of the court, the sheriff or marshal, did not enforce it, and that, forsooth, changed the nature of the transaction! Suppose the sheriff meets resistance in performing the mandate of the court, the armed force of the nation may be called upon and in final result the nation is in the field. Now, suppose a nation declares that a principle of international law has been violated and the demand for reparation is refused, war ensues, and the field marshal is no less a person than the sheriff. It is submitted that the mere form of the sanction is immaterial, and that the nature of law cannot well depend upon the whim or ability of a sheriff, or the mere success or failure of an army in the field. If the principle is binding at all—that is, if nations admit that a principle binds them-it is of no great moment whether the force is moral, ethical, or physical. It does not make much difference in the end to the criminal, nor to the rest of mankind, whether the offender has his neck broken or is electrocuted, provided
1 Reprinted with modifications and additions from two articles contributed to the Columbia Law Review for June, 1904, and February, 1905.
death results. It seems, therefore, unscientific, if not positively absurd, to make the essence of a thing depend upon a mere form of punishment. But the question is after all a quibble of words-a mere wortstreit, as the Germans aptly phrase it—for if modern civilized nations agree to regard a body of rules and regulations as binding them in their mutual dealings and punish infractions of this code by embargo, reprisals, retortions, pacific blockades, and war, it would seem that the sanction—that is, the penalty predicated upon the element of force demanded—is present. The difference of origin and form is merged in the result. For instance, an act of Congress is the joint product of House of Representatives, Senate, and President (supposing he approves it, or it becomes a law over his veto or without his action); a treaty is the act of the President and two-thirds of the Senators present. There is indeed a difference in the origin and the stages through which law and treaty pass; but the Constitution ascribes to the treaty the force of law, saying in effect that the treaty so acted upon is law, the law of the land, in precisely the same sense that an act of Congress is law."
If, therefore, nations regard a principle as binding as a law which would seem not to be a law without this consent, express or implied, as evidenced by usage and custom, such principle certainly does have the force of law, although it may differ widely in its origin from the municipal law, just as a treaty differs in formation from an ordinary act of Congress.
The simple but forcible illustration of Abbé Galliani in maintaining a first cause as against the doctrine of chance is clearly in point. There is to paraphrase rather than to quote him literally—nothing strange in a man's throwing double sixes once; if he throws them two or three times in succession, the transaction becomes a trifle suspicious; but if he throws double sixes every time, the inevitable conclusion in the mind of every reasonable and thinking person is that the dice are loaded. Now, if nations enforce a given tenet of international law as law every time it comes into play, it must surely be because it is law and binding, and if the accepted definition of municipal law does
Article III, Sec. 2, Foster & Elam v. Neilson (1829) 2 Pet. 253, 314; Wunderle v. Wunderle (1893), 144 Ill. 40; Whitney v. Robertson (1887), 124 U. S. 190; Geofroy v. Riggs (1889), 133 U. S. 258. And see generally Butler's Treaty-Making Power of the United States.
not include this law of nations, everywhere existent in modern civilized life, enforceable and enforced as law, something must be the matter with the accepted conception of law.
The early English authorities accepted the law of nations as law in the concrete, and administered it in courts of justice and common law whenever a case arose in a court necessarily involving a question of international law. The statement of Sir William Blackstone may be taken as summing up the view of the bench and bar in his day. In a passage of his Commentaries (Book IV, chap. 5, p. 67), not so well known as it should be, the learned expounder of the laws of England says:
The law of nations (whenever any question arises which is properly the object of its jurisdiction) is here [England] adopted in its full extent by the common law, and is held to be a part of the law of the land.
But it is highly probable that the judges before whom these cases came contented themselves with administering the law as they found it, and that they troubled themselves but little if at all with the question whether the principle of law correctly applied in the concrete should be regarded as law in the abstract. It is doubtful whether such a question would have interested them, because there was very little English authority in existence and practically no discussion of moment or importance. Indeed Lord Talbot
argued and determined from *** the authority of Grotius, Barbeyrac, Binkershoek, Wiquefort, etc.; there being no English writer of eminence upon the subject.3
The appearance of Bentham, however, and the rigorous examination to which he subjected law in the concrete, led to a careful examination of the underlying reason of the law in general and its essential elements. If the law, or principle of law, stood this searching and
3 Quoted from the opinion of Lord Mansfield in Triquet v. Bath (1764), 3 Burr. 1478, because Lord Mansfield says: "I was of counsel in this case [before Talbot] and have a full note of it."
"Bentham was the first English writer who viewed law as a whole or criticised English law as a system. He was the first to test English law by a logical standard." (F. C. Montague in the introduction to his admirable edition of Bentham's Fragment on Government, p. 20.) The Fragment on Government- -a searching and withering examination of Blackstone's legal philosophy-appeared in 1776, and the Introduction to Principles of Morals and Legislation in 1789. This latter is perhaps his greatest work, and is at once the clearest exposition of the principle of utility and the most concise and readable statement of his chief principles. For a sympathetic