'spontaneous growth.' A number of blood-related clans might tend either to dispersion and separation, or to coalescence, according to surrounding conditions. Under external pressure, and with constant necessity for common action, they might naturally maintain a close connexion and a common government for certain purposes. And a government once formed has a strong tendency to grow, and to extend the sphere of its jurisdiction and intervention, as Roscher points out in a work which Mr. Hearn, wide as his studies have been, seems not to have examined.* The truth is that the State arose in several ways; sometimes by the growth of a clan, with the increase of numbers, into a people who held together instead of dispersing; sometimes by conquest and the forcible annexation of other tribes and their territory; sometimes by voluntary alliance. But in every case it was by degrees only that it extended the sphere of its action so as to answer fully Austin's definition.

Mr. Hearn's account of the rise of positive law is open to like criticism. Objecting to Sir Henry Maine's view that Austin's definition of law is strictly applicable only to the rules by which society is controlled in states of a type which is exceptional in the world's history, and not to Asiatic empires such as Runjeet Singh governed, Mr. Hearn observes : The difficulty which presses Sir Henry Maine arises, if I may venture to say so, from his failure to appreciate the broad distinction between law and custom. It is true that Runjeet Singh ruled extensive territories, and never made a law in his life. But there was no law in Runjeet Singh's dominions. His subjects, or rather his tributaries, lived according to their customs.'

The real failure, if we may venture to say so, appears to lie in Mr. Hearn's inability to conceive law as passing through stages of development, like the State itself, and only at an advanced stage becoming fully conformable to Mr. Austin's formula. It is, Mr. Hearn himself remarks, the main error of the analytical jurists that they in effect admit no intermediate

* Nationalökonomik des Ackerbaues, von Wilhelm Roscher. Siebente Auflage. Einleitung.

condition between law and anarchy.' We should add that his own main error on the subject is that in effect he admits no intermediate condition between mature law and no law, and does not see that law may begin in custom, as the State may begin in the clan, and with the advance of political organization and the extension of the activity of the central government may come to rest expressly or tacitly on its authority. In its earliest sense,' Mr. Hearn says, 'Jus Privatum meant clan custom, Jus Publicum meant State law.' The Jus privatum, which regulated family relations, property, succession, contract, and wrongs against individuals was, we should say, at the stage at which it was clan custom, also law at an early stage. The difference is not a mere verbal one; it involves the question whether both the State and law are sudden and artificial formations or natural growths; and whether they have not stages of development, to the latest of which only Mr. Austin's formulas can properly be applied.

Throughout his work Mr. Hearn appears to have been unconsciously biassed by a tendency to magnify the points of difference between his own views and Sir Henry Maine's; and this tendency has led to some errors, and to a one-sided treatment of several subjects. He cites Sir Henry Maine frequently and respectfully, but expresses chief obligation to M. de Coulanges, while we should say that he owes most to Sir H. Maine, though he has looked at the structure of archaic society also with the eyes of M. de Coulanges. Yet it were unjust not to admit that Mr. Hearn's work is one of great learning, ability, and value, and that it does honour to the University of Melbourne, in which he now holds office, as well as to the author's Alma Mater, the University of Dublin.

APPENDIX.

TWO BOOKS ON INTERNATIONAL LAW.*

(Atheneum, May 18, 1878.)

THE appearance of a work on International Law, like a petrel on the wave, is usually the harbinger of a storm. The treatise of Grotius, De Jure Belli ac Pacis,' was a product of the early years of the cruelest war of modern times, and was followed by a continuance of it for a generation. The last two. words of its title were an afterthought; the author had originally a commentary on the laws of war only in view. More than half of the earlier editions of Wheaton's work related to war. The first volume of Sir Robert Phillimore's Commentaries was published in the first year of the Crimean war. General Halleck's work was a result of the war between the United States and Mexico, and the first edition appeared in the same year which saw the beginning of the American Civil War. The hostilities, past and prospective, arising out of the Eastern Question had, it may be conjectured, something to do with the new editions of Wheaton and Halleck before us, and they certainly help to make their appearance well timed. Such facts are enough to demonstrate that it is only by a metaphor the name of Law can be applied to the doctrines of publicists respecting international relations, and that the language of

Elements of International Law. By Henry Wheaton. English Edition. By A. C. Boyd. (Stevens & Sons.) Halleck's International Law. A New Edition. By Sir Sherston Baker, Bart. (C. Kegan, Paul & Co.)

Hobbes is still true of independent commonwealths, that they live in the condition of perpetual war, with their frontiers armed, and cannons planted against their neighbours round about."

Men, however, as statesmen sometimes needlessly assure us, are not governed by logic, while they are very much governed by words, and the name of Law has, on the whole with happy results, given no little practical authority to the dicta even of private text writers respecting the rights and obligations of States. Legal fictions have played a great part in the history of civilization, and of all the fictions of jurists the grandest, looking to the magnitude of its effects in both ancient and modern times, is that of a code of natural law. The law of nations, in the modern sense, is an offshoot of the same law of nature which the Roman jurists thought they saw in their Jus Gentium, a phrase which General Halleck has grievously misunderstood. And although some of the modern writers on international law repudiate the authority of the code of nature in its earlier shape, they have been unable to shake off allegiance to it, or to dispense with it as a foundation for the rules they lay down. Wheaton, for example, accuses Grotius of having founded the laws of nations on fictions, and affirms that his supposed state of nature never existed. Yet we find Wheaton himself stating that the law of nature has not precisely determined how far an individual is allowed to make use of force," basing natural proprietary rights on the law of nature,' and professing to determine particular international controversies. which are not without practical importance and interest at the present moment by reference to natural rights.

Thus the old claim of the Baltic powers to treat the Baltic Sea as mare clausum has lately been mooted in some German and Russian journals, and related to it is a wider question respecting the claims of nations to exclusive dominion over portions of the sea. There are, according to Wheaton, 'two decisive reasons applicable to this question;' first, that things which are originally the common property of all mankind can only become exclusive property by means of possession,' and, secondly, that the sea is an clement which belongs equally to all men, like

the air.' Both these reasons are derived from the fiction of a code of natural, inherent, original, and universal rights. Nothing whatever was originally the common property of all mankind; whatever property mankind first possessed belonged, if not to particular individuals, to particular groups of men. Did the sea really belong equally to all mankind, it could not be the property of particular States, even in bays, harbours, ports, and other places where Wheaton allows it to be so Jure Gentium. The air, on the other hand, often actually is private property. Cujus est solum ejus est usque ad cælum' is an old maxim of law, and the high rent of many sites depends on the purity of the air their owners are enabled to let. Mr. Boyd refers to a curious question that arose during the FrancoGerman war as to what treatment persons should receive who ascended in balloons in order to reconnoitre the enemy's forces. Those who were captured by the Germans were imprisoned, and afterwards tried before a council of war. According to some authorities aëronauts of this class are to be treated as prisoners of war. Mr. Boyd observes that although they ought not to be treated as spies, a general is justified in threatening to treat them severely. It is not easy to see how, if all men have a natural right to the air, a general could be justified in punishing any one for moving about in it. The truth is that international law' is based simply upon the usage and conventions of States, the principles of conduct they recognise, and the dictates of policy, reciprocity, and humanity; and so far as it is so, it may be regarded as containing the germ of law, in the strict sense of the word. The Baltic Sea is not mare clausum, simply because the Governments of the civilized world have never admitted it to be so. The King's Chambers, on the other hand, are portions of the sea under the exclusive territorial jurisdiction of the British Crown, because Great Britain has immemorially maintained dominion over them, and other States have conceded it. So, again, the principles applicable to the treatment of persons surveying the operatious of an army in the field from a balloon, should be based partly on belligerent usage in analogous ses, and partly on the milder sentiments and more enlight

ideas governing the conduct of modern Governments and