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right in issue between two nations in their representative capacities are settled in accordance with the common law of nations, and that this obedience is compelled either by public opinion, that is, international opinion, or by the last and most formidable sanction known to nations and mankind-war.
No attempt has been made to formulate a definition of law broad enough to include both municipal law in its narrow and restricted sense, and law as it occurs in the expression "law of nations." The definition of Austin has been criticised and its accuracy questioned, if indeed its inadequacy has not been demonstrated; for it is evident that no definition of law is or can be correct which ignores law as daily administered in a court of justice. It is fair in such instances to presume that the definition of law which excludes the law of the land is inaccurate rather than that the courts administer as law that which is not and cannot be law.
The fundamental objections of the school of analytical jurisprudence to the law of nations as law in the concrete, if not in the abstract, has been examined and criticised, for the further reason that this school has and does deny a legal character to the law of nations, in consequence of which a system, thoroughly legal and scientific in its nature, has fallen into disrepute."
49 By way of an apology for refuting Austin's views, Mr. Westlake, perhaps the leading international lawyer of the English-speaking world, says: "It is also necessary because of the dominant position which certain views of John Austin have held in English universities. * * * That eminent thinker rendered great service by elucidating the various elements, psychological states and states of fact, which have to be provided for by the law of a country, and the knowledge which makes up the larger part of what in the English universities is called jurisprudence. But he prefaced his system by analyzing the law of a country into commands addressed by a sovereign to subjects, including in his description of the sovereign all those who participate in the supreme authority. And the definition of the law of a country which resulted from that analysis he gave as the definition of law, so that international law, not being set by an Austinian sovereign to Austinian subjects, was in his view not law at all, but what he called positive international morality. Now this was beside the mark of what followed in his own lectures. In elucidating the elements with which the law of a country must be concerned Austin found no use for his definition of law, perhaps it was impossible to find any; and thus we are fortunately able to retain most of the fruits of his labor, unaffected by the doubt which has at last arisen about that definition." (Westlake's Principles of International Law, pp. vi-vii.)
And again: "Whatever merit Austin's analysis may have for the law of a country. his treatment of international matters appears to be inadequate, as, notwithstanding
The analytical school, of which Austin is the prophet, has performed a great service in directing attention to the foundations of a scientific jurisprudence, but a devotion to law in the abstract, without an adequate appreciation of the importance of history in the law, has led to a system at once artificial, inadequate and, indeed, inaccurate. In conclusion, the present writer would like to quote as expressing in an admirable and unexceptional way the true reason for the existence of a system of international law, and the nature of the sanctions by which the system is enforced, a remarkable passage from a work worthy of the highest commendation, but too little known or appreciated at the present day:
"When everything else,' says Sir Robert Wiseman, "has a law to guide it, inasmuch as no one society, or petty commonwealth, can stand without some law, the like necessity must there needs be of some law to maintain and order the communion of nations corresponding and acting together, The law, which guideth the transactions which are usually observed to arise between grand societies is the law of nations. The strength and virtue of which law is such that a people can with as little safety violate it by any act, how advantageous soever it may seem to be to the whole body; as a private man can in hope to benefit himself infringe the law of his country. Nay, of such power and pre-eminence is the law of nations. that no particular nation can lawfully prejudice the same by any their several laws and ordinances, more than a man by his private resolutions. the law of the whole commonwealth or state wherein he liveth; for as a civil law being the act of the whole body politic, doth thereby overrule each several parts of the same body; so there is no reason that any one commonwealth of itself should, to the prejudice of another annihilate that, whereupon the whole world hath agreed.50
"The inadequacy of its sanctions is an imperfection which attaches to international law in common with all other law; for there is no law so practically perfect as to allow no crime to go without punishment, and no wrong without redress. Opinion and force are the only sanctions of law, and international and municipal law, so far as the former is capable of being administered by judicial tribunals, are in this respect not distinguishable. Nor, where this capacity ceases are they specifically distin
his great ability, it well may have been from his not having given them much attention." (Op. cit. p. viii.)
And finally: "We shall probably feel less surprise that the revolt against that [Austin's] nomenclature has now become so general than that a writer of such great ability should have adopted it, and that it should have reigned so long in the legal literature of England." (Op. cit. pp. 11-12.)
That mature reflection has only strengthened Professor Westlake in his opposition to Austin's views, see International Law, Part I, pp. 5-9 (1904).
50 Excell. of Civ. Law, p. 99, et seq.; Vatt. i, 283—ii, 53, 70.
guishable by the mischiefs that attend the means that are necessary to enforce them. The evil of which international law justifies the infliction upon an offending state, reaches its unoffending members; but the punishment, which municipal law inflicts upon a criminal, affects his innocent relations. The one is as much law in the strictest sense of the term as the other; but it is not capable of being enforced with as much certainty and as little mischief. The difference is a difference of gradation and not of kind.' JAMES BROWN SCOTT.
Richard Wildman's Institute of International Law, vol. i; pp. 31-32.
THE HISTORY OF THE DEPARTMENT OF STATE.1
THE DEPARTMENT OF FOREIGN AFFAIRS.
The first Congress of the Revolution assembled in Carpenter's Hall, Philadelphia, September 5, 1774. An address to the king of England was adopted and transmitted to the agents of several of the colonies in London, with instructions to present it to the king. They were to ask the aid of such Englishmen as they might have reason to believe were "friends to American Liberty." The instructions were drafted October 26, 1774, by John Jay and Richard Henry Lee, and were sent to Paul Wentworth, who represented New Hampshire Charles Garth, a member of Parliament, the agent of South Carolina; William Bollan, agent of the Massachusetts Council; Thomas Life, the agent of Connecticut; Edmund Burke, who had been chosen agent of New York in 1771; Arthur Lee, who held an appointment to succeed Benjamin Franklin as agent of the Massachusetts Assembly; and Franklin himself, who had been appointed in 1765 agent of Pennsylvania, in 1768 of Georiga, in the same year of New Jersey, and in 1770 of the Massachusetts Assembly. For the first time, these agents were deputed to act for the "United Colonies;" but Bollan, Lee, and Franklin, who alone
1 In 1893 there was published as a part of the exhibit of the department of state at the World's Fair at Chicago a small volume entitled The Department of State of the United States; Its History and Functions, by Gaillard Hunt; and this, which is hardly more than a skeleton of what a history of the department of state should be, remains thus far the only work of any importance on the subject. The paper printed in this number of the Review will be followed in the next issue by Part II on the Creation of the Department of State
'Secret Journals of Congress, i, 58.
'Force's American Archives (fourth series), i, 938, gives the names of the colonies these agents represented. Wentworth soon afterwards became a secret agent of the British government, and entered into active correspondence with the Earl of Suffolk and William Eden, furnishing them with information concerning the progress of American affairs. (See Stevens' Facsimiles of Manuscripts in European Archives Relating to America.)
according to Franklin, "properly had anything to do with the tea business,' 174 were the only ones who accepted the office. Their duties were, to a certain extent, diplomatic, and they were the representatives of a power that was soon to become independent.
Before separation from England was actually determined upon, it was resolved that the Continental Congress should conduct the foreign affairs of the colonies. The sketch of articles of confederation submitted July 21, 1775, contained these words in Article V:
That the power and duty of Congress shall extend to the determining of war and peace; the sending and receiving ambassadors, and entering into alliances (the reconciliation with Great Britain).
This proposed article pointed clearly to the approaching declaration of independence, as the sending and receiving of ambassadors and forming alliances were attributes of sovereignty.
After independence had been declared, articles of confederation and perpetual union were proposed on July 12, 1776. Article XVII declared:
The United States assembled shall have the sole and exclusive right and power-of determining on peace and war, *** sending and receiving ambassadors under any character: entering into treaties and alliances, etc.
The draft of the articles submitted by the committee of the whole, August 20, was to the same effect, and this appeared as Article IX in the articles bearing date July 9, 1778, and finally ratified March 1, 1781.5 After the colonies had formed a union they made no attempt to separately conduct any foreign affairs of consequence.
The channel through which flowed all action relating to the rest of the world being the Congress, that body made its first effort to provide for a subordinate committee which should have immediate charge of the subject on November 29, 1775, when the committee of secret correspondence was created by the following resolutions:
Resolved, that a committee of five be appointed for the sole purpose of corresponding with our friends in Great Britain, Ireland, and other parts of the world; and that they lay their correspondence before Congress when directed.
Works (Bigelow), v, 509
'Secret Journals of Congress, 283, et seq.