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CHAPTER I.

ORIGIN AND NATURE OF INTERNATIONAL

LAW.

SECTION 1. DEFINITION.

Various definitions of International law have been given by judges and writers, from which the following have been selected:

"International law, is understood among civilized nations, as consisting of those rules of conduct which reason deduces, as consonant to justice, from the nature of the society existing among independent nations: with such definitions and modifications as may be established by general consent." "

"The aggregate of the rules which Christian states acknowledge as obligatory in their relations to each other, and to each other's subjects." 2

"International law, or, as it is sometimes called, the 'law of nations,' may, therefore, be defined as that body of rules and limitations which the sovereign states of the civilized world agree to observe in their intercourse and relations with each other." 3

"International law may be considered from two points of view, viz.:

(a) From the philosophical point of view, as setting forth the rules and principles which ought to be observed in interstate relations.

(b) From the scientific point of view, as setting

1 Elements of International Law,

Sec. 14.

• Woolsey, Sec. 5.

Down's Elements of International Law, page 2.

forth the rules and principles which are generally observed in interstate relations."

"The law of nations may be defined to be a collection of rules deduced from natural reason, as that is interpreted by those who adopt them, and resting in usage, or established by compact, for regulating the intercourse of nations with each other.

"Rights and obligations are interior between sovereign and people, and are regulated by the municipal law; or exterior, between nations considered as moral persons; and these are regulated by the law of nations."' 5

The term "international law," while apparently introduced in its Latin form by Zouch, an English admiralty judge of the seventeenth century, was first brought into general use by Bentham, and soon replaced the name of jus gentium and other older names. The great objection to the use of the jus gentium to describe the laws governing the relations between foreign countries, was on account of the previous use of this term, in a different sense, in the Roman law."

SECTION 2. NATURE OF INTERNATIONAL LAW.

It has been argued by Pomeroys that "international law" is in reality not a system of law at all, but rather a system of "international morality."

• Wilson & Tucker on Inter

national Law, Sec. 1.

The Antelope, 10 Wheaton, 122. • "Zouch (1590-1660), the successor of Gentills, as professor of Roman Law at Oxford, while a follower of Grotius in matter and method, deserves mention for his distinction between jus gentium and that law to which he gives the name jus inter gentes, in the French translation called Droit entre

les Gens, later Droit Inter-
national, and in the English,
Law of Nations, and since the
latter part of the eighteenth
century, when Bentham led the
way, International Law."-
Wilson & Tucker on Inter-
national Law, page 26.

See subject of Legal History,
Vol. 1, Subj. 2, Sec. 20.
Pomeroy on International Law,
Sec. 291.

It has been denied by other writers also that international law is, properly speaking, law at all. The better view, however, is that international law is properly considered as a system of law, although lacking some of the attributes to be found in the other branches of this science.

"If law is defined, as by Austin, 'A rule laid down for the guidance of an intelligent being by an intelligent being having power over him,' it would not be possible to include under it international law without undue liberality in the interpretation of the language.

"In form, however, law is a body of rules and principles in accord with which phenomena take place. If these rules are not followed as enunciated by the state in case of statute law, certain penalties are inflicted. The nature of the penalty must, to a great extent, depend upon the source. International law is the body of rules and principles, in accord with which, interstate phenomena take place. Violations of international law do not meet the same penalties as those of statute law, as they do not have the same source nor an established tribunal for their enforcement. International law is, however, in form law and in practice so regarded."

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SECTION 3. BASIS OF INTERNATIONAL LAW.

The basis for the authority of international law is the same as the basis for early laws of every character, namely, the general consent of those to be bound thereby, strengthened by custom and continued acquiescence. There is no common superior among nations to promulgate principles of international law, and on

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the other hand, no single nation can introduce a new principle into this system.

The Supreme Court of the United States said on this point in the case of The Antelope: 1"

10

"As no nation can prescribe a rule for others, none can make a law of nations."

Again, in a later case," the same court said:

"Undoubtedly, no single nation can change the law of the sea. The law is of universal obligation, and no statute of one or two nations; it rests upon the common consent of civilized communities. It is of force, not because it was prescribed by any superior power, but because it has been generally accepted as a rule of conduct. Whatever may have been its origin, whether in the usages of navigation or in the ordinances of maritime states, or in both, it has become the law of the sea only by the concurrent sanction of those nations who may be said to constitute the commercial world. Many of the usages which prevail, and which have the force of law, doubtless originated in the positive prescriptions of some single state, which were at first of limited effect, but which when generally accepted became of universal obligation. The Rhodian law is supposed to have been the first system of marine rules. It was a code for Rhodians only, but it soon became of general authority because accepted and assented to as a wise and desirable system by other maritime nations. The same may be said of the Amalphitan Table of the ordinances of the Hanseatic League, and of parts of the marine ordinances of Louis XIV. They all became the law of the sea, not on account of their origin, but by reason of their acceptance as such. And it is evident that unless 10 10 Wheaton, 122.

"The Scotia, 14 Wall, 187.

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