regard war with increasing aversion and dread, and may repine more and more at the increasing burden of armies; but those armies are maintained not to carry out the will of nations, but to The conquer it when it conflicts with the will of monarchs. difference between municipal and international justice is that supreme power, the power of the sword, is on the side of the former, but on the side opposed to the latter.

Nor can the steady improvement in the public opinion and the commercial relations of nations, on which some very eminent writers both in this country and on the Continent rely, be depended upon to remove the causes of war. Means of commerce and communication may move either armies or merchandize, and there is not one powerful State on the Continent in which public opinion decides which the movement shall be. The first step which nations must take to make public opinion an effectual obstacle to war, is to establish governments representing public opinion-the opinion of those who suffer by war and prosper by peace. But this, though the first step, must not be the last. Mere opinion, without the authority and procedure of law, can never supersede altogether the barbarous alternative of trial by combat. We find ourselves at this point at variance with an admirable essay on international law in a former number of this Review, by a writer who never fails to instruct his readers even when he fails to convince them, and whom, on that account, we quote at some length:

'When we ask what are the sanctions of international law, it is plain that they can only be such as opinion has at its disposal, and may therefore best be gathered by observing the force of social opinion in the sphere in which we are most familiar with its operations-the sphere of private life. Opinion, it is obvious, may enforce its behests by either of two means-by physical coercion or by moral suasion. In the early stages of social progress, opinion makes its energy felt chiefly or, at all events, largely through the former means. But as society advances, a recourse to violence seems to be less needed, as the moral elements in the human character grow in power. Praise and blame are gradually substituted for the coarser sanctions of the earlier state. Already this process has been carried so far in

the more advanced nations that these, the moral sanctions of opinion, are now found adequate in the main to all the ends of social intercourse. This being the history of the sanctions of opinion in the social life of individuals, the question occurs how far we are justified in anticipating a like development in the social life of nations. And it is at the first glance obvious that up to the present time, mankind has nowhere, even in the most advanced nations, reached the stage at which the sanctions of opinion can in international affairs be safely dispensed with. But the mere fact that opinion in international affairs is not yet sufficiently powerful to serve as its own sanction, by no means proves that it may not become so; and the question for the philosophical publicist is not simply what is the efficacy of public opinion in the affairs of nations, but what in the advance of civilization is public opinion capable of becoming. Is a state of mutual distrust and suspended hostility destined to be the normal and inevitable condition of independent States? or may we reasonably look forward to a time when in the intercourse of nations, as has already happened in the intercourse of individual men, submission to opinion may supersede the necessity of violent expedients, and the kindly earth may slumber, lapt in universal law'? . . . There seems reason for believing that all the leading currents of modern civilization are setting steadily and rapidly towards the formation of a body of international opinion which, judging from the efficacy that opinion has already developed in analogous departments of human life, there is ground for hoping may ultimately, and at no remote date, become an effective check on the conduct of nations. International law must have its sanctions, and for these the alternative lies between fleets and armies and the moral restraints of opinion. If the enormous armaments which now weigh upon the physical and mental energies of Europe are ever to be largely and permanently reduced, this will be when, and no sooner than when, international opinion is felt to have become strong enough to perform their part.'*

One line quoted in the foregoing carries in itself the com

* International Law. By Professor Cairnes. Nov. 1, 1865.

ment we are desirous of making, namely, that 'universal law' alone can supersede altogether the arbitrament of war between nations. It is law, and not the mere force of opinion, powerful as it has become, which still supersedes physical force as the arbiter in the last resort within nations, both of private and political quarrel. The bare distinctions between meum and tuum owe their establishment and authority entirely to the supremacy of law. There is no social relation whatever,partner and partner, principal and agent, landlord and tenant, employer and labourer, railway company and passenger, creditor and debtor, husband and wife,-which can dispense with legal command and enforcement. The succession to property would carry war into every family, but for the law and tribunals. Without an arena for debate and legislative decisions, and a powerful executive to enforce the public decisions so arrived at, individuals would by no means submit as they do to the control of public opinion, nor would it be always easy even to ascertain what it is. If civil war were the only mode of measuring their relative strength, political parties would assuredly resort to it; and it is probable that public opinion would be still on the side of the duel, or at least of personal chastisement, were outrage and insult without legal redress. We hold, therefore, that only a law of nations, in the strict sense of the term, can terminate war; and the question follows, Is there a possibility of such a law? We answer that the germ of a true international law, in the proper sense of both terms, international' and 'law,' is already discernible: of the first, because, in spite of some sinister indications, sovereignty is steadily becoming more national; of the second, because the political relations of States do in fact exhibit the features of law in its inchoate or rudimentary stage. The first steps of municipal justice in private disputes consist, on the one hand, in subjecting rude strife to some conventional regulations, and investing the appeal to force in this regulated form with the solemn aim and ideal of trial by combat, thus introducing the conception of legal process; on the other hand, by the occasional intervention of neutral parties or bystanders as arbiters. With respect to the latter, the history of Roman law furnishes an instructive and interesting parallel. Very far the

most ancient judicial proceeding known to us is the Legis Actio Sacramenti of the Romans, out of which all the later Roman law of actions may be proved to have grown. It is impossible. to refuse assent to those who see in it a dramatisation of the origin of justice. Two armed men are wrangling about some disputed property. The prætor, vir pietate gravis, happens to be going by, and interferes to stop the contest. The disputants state their case to him, and agree that he shall arbitrate between them.' Thus in the original administration of justice the proceedings were a close imitation of the series of acts which were likely to be gone through in private life by persons who were disputing, but who afterwards suffered the quarrel to be appeased. The magistrate carefully simulates the demeanour of a private arbitrator casually called in.'* Trial by combat, on the other hand, was the martial judicial procedure of the barbarian nations to whom the Romans succumbed. Paterculus remarked that all those questions which were decided by process of law among the Romans were settled among the Germans by arms; and this primitive method of adjudication we find but tardily eliminated by gradual steps from English jurisprudence, first by excluding its application in cases of trivial importance, next by subjecting it to rules and solemnities, and finally by substituting for it an appeal to the verdict of equals; and we know that a growing conviction of the extreme injustice of adjudication by arms was one principal cause of the introduction of the institution which ultimately, under various transformations, superseded it altogether. The grand assize,' wrote the earliest commentator upon English law, is a certain royal benefit bestowed upon the people, and emanating from the clemency of the prince, with the advice of his nobles. So effectually does this proceeding preserve the lives and civil condition of men, that every one may now possess his right in safety, at the same time that he avoids the doubtful event of the duel. This legal institution flows from the most profound equity. For that justice which, after many and long delays, is scarcely elicited by the duel, is more advantageously and expeditiously attained through the benefit of this institution.'+

* Ancient Law. By H. S. Maine, ch. x.

+ Beames's Glanville, pp. 54-55.

The subjection of international warfare to regulations and forms, and the growing disposition to resort to arbitration of the differences of States, are thus precisely analogous to the early steps of municipal justice; and to this may be confidently added the tendency to establish popular governments, as clearly facilitating the recognition of a true international law. For nations are not, like monarchs, indisposed and unaccustomed to submit to legal control; the popularity of legal institutions, on the contrary, shows itself among them with the first traces of civilization. Readers of our early chronicles cannot fail to perceive how acceptable to the bulk of the nation was the prerogative which the Crown gradually arrogated of being the common arbiter of disputes and the dispenser of general justice. The previous judicial functions of the allodial and feudal owners of land had a similar origin in the social necessity for some system of magisterial arbitrament to supersede perpetual anarchy and warfare. The constant extension of the boundaries of law is one of the most striking facts in the history of mankind, and the reason is easily discovered in the imperious general need for peace and security. The history of mankind,' as Mr. Maine has observed, 'begins with the assumption that kinship in blood is the sole possible ground of community in political functions; nor is there any of those subversions of feeling we term emphatically revolutions so startling and complete as the change accepted when some other principle, such as that, for instance, of local contiguity, establishes itself for the first time as the basis of common political action.' The same eminent jurist remarks, that it is by means of legal fictions that municipal law makes its earliest advances; and it seems to us evident that the fiction of international law, as a real code of legal obligation, has owed its success in a great measure to a deep, universal feeling of necessity for the existence of such a code. Law is a natural and necessary growth of more numerous and closer human relations, and the extension of industry and wealth. As nations come closer together, as their commercial relations multiply, on the one hand, and the danger of sudden destruction, on the other, becomes more instant and appalling, it is inconceivable that, as they become