APPENDIX.

TWO BOOKS ON INTERNATIONAL LAW.*

(Athenaum, 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 element 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 cases, and partly on the milder sentiments and more enlightened ideas governing the conduct of modern Governments and

generals than those which dictated the practices of warfare before balloons were in use for the purpose. No 'decisive reasons' applicable to any question concerning either the sea or the air can be drawn from such sources as Wheaton appeals to.

Considering how largely the international code of war has been made, not by neutral powers or impartial judges, but by the conduct of the commanders of hostile armies, one might well be astonished at first sight that it is not more cruel and tyrannical than it is. How it actually grew up; how it gradually softened as civilization advanced, and as the perceptions on the part of sovereigns, statesmen, and generals of the interests of their own armies and countrymen became finer, and how far, again, it is from being founded on the recognition of any original or natural rights of mankind, is admirably illustrated by passages in the Duke of Wellington's despatches, which authors of works on international law would do well to study. We find him calmly stating that he always treats his French prisoners with the utmost humanity and attention, and that his only reason for doing so is that the enemy may treat his soldiers well when they become captives in turn. He protects the French peasantry from pillage, not on the ground that, by a law of nature, private property on land is entitled to such immunity, but because if his troops plunder they will ruin us all;' and because the result of paying for everything was that the peasants drove their flocks to seek protection within the lines of the British army, while the French troops were almost starving.

The confusion with which the attempt to deduce a code of belligerent rights from great original and fundamental principles, instead of from the actual usages of war, has surrounded the subject, is exemplified in the two books before us by the discussions relating to the exemption of private property from capture. If the two works be compared, it will be seen that it is not clear whether the general principle from which we are to set out is that a belligerent has a right to use every means to subdue his enemy and to deprive him and his adherents of everything that might enable him to resist, or that no use of force is legitimate unless it be necessary to secure victory. If, again, we accept it as a general rule, however arrived at, that

private property is exempt from confiscation, we presently find that the exceptions are so sweeping that the general principle appears to be wholly set aside by them. Not only may private property be taken from enemies in the field, or in besieged towns, but military contributions at discretion may be levied on the inhabitants of the enemy's country. Whatever ministers to the strength of the enemy and enables him to continue the contest may be seized. Thus, during the American Civil War the Supreme Court decided that cotton could be lawfully captured on the ground that any property which the enemy can use, either by actual appropriation or by the exercise of control over its owner, or which the adherents of the enemy have the power of devoting to the enemy's use, is a proper subject of confiscation.' It is lawful' also to ravage or lay waste the enemy's country, if it be necessary to accomplish the just ends of war.' General Halleck thickens the confusion by the statement that some modern text writers-Hautefeuille for example -contend for the ancient rule that private property on land is subject to seizure and confiscation,' adding that they are undoubtedly correct with respect to the general abstract right, as deduced from the law of nature and ancient practice; but while the general right continues, modern usage and the opinions of modern text writers of the highest authority have limited this right by establishing the rule of general exemption.' The truth of the matter is that the law of nature is a mere dream; that not ancient but modern practice, not ancient but modern sentiments and ideas, should guide the policy and conduct of governments and generals and the principles of publicists in the matter. But the same consideration shows, on the other hand, the fallacy of the reasoning of writers who, starting from the position that international law is so called only by a fiction or a metaphor, and that no legal rights or obligations, in the strict sense, are established even by the most solemn treaties of independent states, conclude that a treaty is consequently binding only so long as each of the parties chooses to be bound by it, or as the circumstances which led to it remain unaltered. Doubtless neither usage nor convention can, where there is no lawgiver or legislature, create legal rights or impose legal