C. de Wolff.

Vattel.

A contemporary of Bynkershoek was Christian de Wolff (1679-1754), a

philosopher, mathematician, theologian, lawyer and disciple of Leibnitz.

Wolff's great work on the _Institutions of the Law of Nature and

Nations_ is a learned and accurate treatise drawn from all the

well-known sources of knowledge, and, just as Grotius based his

demonstrations on the then imperfect knowledge of public events of his

time, Wolff based his on the more accurate sources of information which

had grown up under the influence of Leibnitz, and created a connected

system out of the scattered fragments available. But his book was

written in Latin at a period when scholarship had declined, and its

influence was only felt after Vattel (1714-1767) wrote his _Droit des

gens, ou principes de la loi naturelle appliquees a la conduite et aux

affaires des nations et des souverains_ (1758). His book had all the

charm, although Vattel was a Neufchatelois, of the French writers of his

time, and he it was who popularized the study of International Law. His

book was based chiefly on the work of Wolff, but in it he gave what was

best amongst his predecessors without attempting to add anything

original of his own. It became the handbook of statesmen and jurists,

and has never ceased to be quoted by them down to the present day.

But the opinions of jurists in International Law can have little more

than the value of criticism and co-ordination. They have seldom served

to make law, though they have the weight of all statements made by those

who have made a special study of any branch of law, as to what they had

gathered to be the existing practice at the time when they wrote, or as

to the trend which they showed that practice might be taking. Great

lawyers and writers like those we have mentioned, and such as Lord

Mansfield, Sir William Scott, Chief-Justice Marshall and others, have

done the work of classifying facts, deducing conclusions from them and

connecting rules with psychological and ethical motives, and have thus

sent a current of higher intelligence through the subject which has

raised it to its present methodical form. Still International Law

remained a wide field for controversy. Authors were agreed on general

principles, but when these general principles were applied in practice,

the shortcomings of unwritten usage often caused as much difficulty as

that which the appeal to principles was intended to overcome.

Hague and London Conferences.

What may be called the first enactment of rules of International Law was

the Declaration of Paris of 1856, but the great work of codification, or

rather of reducing into writing the rules which had been floating as an

unwritten law in the conscience of Europe, was undertaken by the Hague

Conferences, which may be said to be and to have created an entirely new

factor in the domain of International Law. Two of the conventions

adopted in 1899 completed work which had already been commenced long

before, viz. those on the usages of war and on the adaptation of the

Geneva Convention to naval war. The third established methods for the

pacific settlement of international difficulties, including the

formation of the Hague Court of Arbitration. Recourse to the latter was

purely optional, but the other two conventions have been absorbed into

the national law of the ratifying countries, and thus have also the

domestic sanction states give to their own laws. The work of the

Conference of 1907 was of a much wider and more exhaustive character

than that of 1899. It comprised, besides revised conventions on the

matters dealt with in 1899, new Conventions on the following subjects:

Opening of hostilities; Position in naval war of enemy's merchant ships

at beginning of hostilities; Conversion of merchant vessels into

warships; Rights and duties of neutral states in naval war; The laying

of automatic submarine contact mines; The bombardment of undefended

places by naval forces; Treatment of fishing vessels, postal

correspondence and capture generally in maritime war; and Recovery by

force of contract debts. It also adopted a convention for the creation

of an International Prize Court of Appeal, which led to the calling of a

fresh Conference on Prize Law. This conference sat in London from

December 4, 1908, to February 26, 1909, and was confined to

representatives of the following countries: Great Britain, France,

Germany, United States of America, Italy, Austria-Hungary, Russia,

Japan, Holland and Spain. It adopted a series of rules on naval warfare

relating to Blockade in time of war; Contraband of war; Unneutral

service; Destruction of neutral prizes; Transfer to neutral flag; Enemy

character; Convoy; and Resistance to search and Compensation.

The revolution effected in the relations of states by the Hague and

London Conferences, however, is not confined to the reduction into

writing of more or less vague usages nor to the elaboration of details

which no usage can possibly determine. Until a machinery was provided

for the reform of the law it was futile to speculate on the advantages

or disadvantages of any rule admitted by the majority of civilized

nations. The territorial waters 3 m. limit, for instance, had its origin

in the distance seawards of cannon-range in a past period. Its almost

universal recognition only came long after the range of coast-guns had

far exceeded this distance. This superannuated rule has now no legal

basis at all except the so-called "common consent of nations," a boon no

doubt which outweighs any consideration of absolute fitness still

unrecognized, but of which the learned Barbeyrac truly said,[14] "Ce

commun consentement des peuples que l'on suppose avoir force de loi est

une chose qu'on ne prouvera jamais." The institution of the Hague

Conferences has now provided a method of obtaining the consent of

nations, not only to existing rules, but to their reform and to the

introduction of new rules. It is now an understanding among the states

of the world, that these conferences shall be held periodically. It is,

of course, possible for one great state to hold aloof and thus wreck the

chances of universal agreement, but even then we have the power of the

majority as against that of the minority. A case actually arose in a

recent war between non-signatories of the declaration of Paris of 1856.

Neither the United States nor Spain was a party to that declaration, yet

neither ventured to disregard it.

The chief source of International Law will, therefore, in all

probability for the future be that "Parliament of mankind," the Hague

Conferences. The Hague Court and its adjunct in time of war, the

proposed International Prize Court of Appeal, will form the Judicature

applying and construing the enactments of the Conferences acting as a

sort of international Legislature.

Standard of right conduct.

_Fundamental Principles._--Underlying the details of both the new

International Legislature and the new International Judicature are

certain principles which may some day have to be officially defined.

These principles have necessarily fluctuated with the standard of morals

of each period. With the contemporary development of the public

conscience, they are undergoing changes and a betterment which it is not

desirable to check by yet nailing them up as immutable articles of

faith. Till quite recently it was usual to speak of the common standard

of right conduct prevailing throughout the Christian world, a standard

to which responsible statesmen tried to adjust their direction of the

affairs of state. The admission of Japan into the councils of the great

powers has introduced a non-Christian element whose standard of conduct

was not identical with nor based upon Christian morals. Turkey, though

admitted in 1856 to European Councils, remained rather the occasion of

their deliberations than a deliberating party. Her new position as a

constitutional state, with a code of morals at any rate in some

essentials distinct from that of Christian peoples, will add a further

new non-Christian element into the moral foundations of international

conduct. The influence of western Europe, however, in both Japan and

Turkey, has hitherto in all external development been paramount. Japan,

after examining all the existing systems, has even adopted the best she

found in Western morals, and in her schools inculcates Christian ethics

as a subject _per se_ without reference to divine revelation or

authority. Turkey too has the advantage of possessing a code of morals

which produces so high a standard of right conduct in private life that

very little in the way of moral lessons will have to be learned by the

Ottomans from Western civilization. As regards practice, it is

unreasonable to expect that the high estimate of the moral standard of

west European civilization, which is cherished by those who profess its

principles, should be accepted by other peoples with unqualified assent.

Are not the nations of western Europe still vaguely influenced by the

instincts of their conquering ancestors, and by the traditions of--

"... the good old rule,

... The simple plan,

That they should take who have the power

And they should keep who can"?

There is nothing essentially different between many recent wars and

military enterprises undertaken by Western nations against heathen

peoples, and wars and conquering enterprises undertaken by the Northmen

of a thousand years ago. In his _Northern Antiquities_ Mallet[15]

describes the primitive feeling of the Northmen in the following

passages:--

"The rules of justice, far from checking their prejudices, had been

themselves warped and adapted to their bias. It is no exaggeration to

say that all the Teutonic nations entertained opinions on this subject

quite opposite to the theory of our times. They looked upon war as a

real act of justice, and esteemed it an incontestable title over the

weak, a visible mark that God had intended to subject them to the

strong. They had no doubt but the intentions of this divinity had been

to establish the same dependence among men which there is among

animals, and setting out from the principle of the inequality of men,

as our modern civilians do, from that of their equality, they inferred

thence that the weak had no right to what they could not defend. This

maxim which formed the basis of the law of Nations among the ancient

inhabitants of Europe being dictated by their most darling passion, we

cannot wonder that they should so steadily act up to it in practice.

And, which after all is worst, to act and think as they did, or, like

the moderns, with better principles, to act as ill? As to the ancient

nations, we attribute nothing to them here but what is justified to

them by a thousand facts. They adopted the above maxim in all its

rigour and gave the name of Divine Judgment not only to the Judiciary

Combat, but to conflicts and battles of all sorts: victory being in

their opinion the only certain mark by which Providence enables us to

distinguish those which it has appointed to command others."

What is a civilized state?

The very notion of the "right of conquest," and that the victorious are

entitled to an indemnity without reference to any question of right and

wrong or of justice and injustice, shows that there are principles in

actual practice which lie outside and have no analogy in the principles

of private law. In the partition of Africa native states have been

treated as non-existent except as local bodies. They have been annexed

to European states without reference to their will or consent. Treaties

have indeed been made with them, but they have rather been regarded as

evidence of prior occupation than as involving any question of native

right. The test in the distinction between civilized and uncivilized

states which is regarded as warranting exclusion from enjoyment of the

right to consideration as independent states, and admission to the

community of the civilized world, is in practice the possession of a

regular government sufficient to ensure to Europeans who settle among

them safety of life and property. Every country, in principle,

possessing such a government has prima facie the rank of a state and is

entitled to treatment as a civilized community. Treaties made with it

for the purpose of extra-territorial jurisdiction are intended merely to

take into account a difference of judicial institutions but are not

supposed to detract otherwise from the possession of such equality and

independence. This principle has no analogy in private morals, and has

been, slight as it is, more honoured in the breach than the observance.

If indifference to native right has provoked reaction, it has been on

the part rather of philanthropists than of statesmen. Their movement for

the protection of African aborigines has, however, resulted in at least

one great international charter for the prevention of the further

degradation of African aborigines, viz. the General Act of Brussels of

1885. A vigorous outcry has also been raised against the methods of the

government of the Congo State. But the agitation ought not to be

confined to this part of Central Africa. Other governments are also in

fault. In fact, the contact of the European with Central Africa has,

throughout, with few exceptions, been one of barbarous practice quite

inconsistent with the principles which Christian missionaries have been

sent to teach the African native.

In the case of European enterprise in Asia, the "good old rule" has had

still less justification. The action taken for the repression of the

Boxer movement in China, like previous European incursions, had no

essential characteristic distinguishing it from the expeditions of the

Northmen described by Mallet in the above-quoted passage. The Japanese

took part in the "Boxer" expedition, and the example of respect for

native right and of orderly self-restraint they set has been universally

acknowledged. But the lesson is one of greater significance than one of

comparative ethics. The rise of the power of Japan and her obvious

determination to constitute herself the champion of the races of eastern

Asia has widened the scope of International Law, and we may now regard

China as henceforth under the protection of the same principles as

European states.

The three chief principles of interstate intercourse, those, in fact, on

which International Law is based are:--

Encyclopaedia Britannica, 11th Edition, "Inscriptions" to "Ireland, William Henry" Volume 14, Slice 6 · 第 32 / 49 题