The record-union. [volume] (Sacramento, Calif.) 1891-1903, 1891-05-03
INTERNATIONAL Law.
What 1t Is and the Good 1t Ac-
composites.
Crystallized Into Fixed Usage-An
and Civilization.

ny s1ahizeu INTO t1Xeu UsaSe-Au
Outgrowth of Modern Commerce
and Civilization.
The diplomatic disagreement between
the Government at Washington and the
Italian Foreign Office has given rise
TO much discussion of international
law, and the various points bearing on
the case in issue are being argued by self
appointed disputants with as much earn
estness as though the fate of empires de-
pended on the turn of legal phrase.
Most of the talk, however, is of the wild
est possible character, from the fact that
there exists in the popular mind q serious
mlsconception of the thing, for most of
those doing the talking seem to take it for
granted that international law is of the
same nature as the statutes passed by leg
lslatlve bodies to regulate the internal
economy Of a State. In this understand
ing of the word there is no such thing as
international law, since, in the proper
sense, this presupposes general congress
OF all the nations, mature deliberations
and the passage of Acts to be binding on
all, and enforced, Unnecessary, by the ma
Jorlty OF the conSenting nations. II is
true that on several occasions representa-
uves OF various leading nations have
come together for purposes of delibera-
ton, and also that agreements have been
arrived at with regard to certain matters
OF international interest, but it is certain
that these have been kept only so far as
the interest of the consenting Govern
ments prompted, and that, as a rule, no
effort was made to punish their violation
re in nraFtl !,
nature OF treaties, and when a treaty is
violated breach Of faith is involved; but
otner nations may or may not unite to
chastise the offender, their action depend
ing on the result to themselves.
international law, in the sense of defin-
tie statute, therefore, has no existence.
What Is called international law is COM
posed of an infinite mass of precedents
culled from thousand different sources
and, arranged in some degree of order
made to serve as guides Of action. The
law OF nations is the sedimentary deposit
OF national treaties and agreements. and
proceeds on the assumption that because
thing was done once and nobody OBJ
jected it may be done again; that if there
had been any valid reason against it some
body would have objected at the time il
was first done. In this particular the
affairs OF nations are conducted on the
principle which regulates the intercourse
"a lluINlAudlS. II, IOr instance, a man
has for many years been accustomed to
pass over the land of another in order to
gain admission to dwelling, long estab-
llShed usage gives q right, for however
the practice originated, the law presumes
that at the start permission was given, or
at least no objection was raised. In like
manner, when the ships Of one nation
have been accustomed for many years to
pass through strait the shores Of which
are in possession Of other Powers, the
right to do so is regarded as established
| by usage, no matter what the origin of
the custom.
INTERNATIONAL QUESTIONS.
What is called international law is
really 1.-The creation of moralists, nodded
by the acumen of juriSts and the wisdom
OF statesmen" Even in ancient times
| certain formahtieS were occasionally OBJ
served IN the intercourse between the ma
! lions turthest advanced In civilization,
but very slight provocation was sufficient
to cause even the most enlightened to
sweep away all the barriers to their own
will, and disregard not only any prece-
dents that may in a feeble, perfunctory
way have been recognized, but even
the commonest dictates of humanity.
For international law relates primarily
TO the regulation or prevention of war be-
tween nations, the fact being recognized
! that in savagery, barbarism, and even in
| the lower grades of civilization, the natu-
| raj condition of nation is one of conflict
with its neighbors. In medieval times
the logical minds of theologians were
directed to several fundamental cues
tons, and from the discussion and eluci-
datlon OF these certain principles of inter
national comfy, were deduced. Can a
Christian engage in war?' ''To whom
belongs the right of declaring war;"
What causes will justify a resort to
war?' Gin just war, what are the rights
of belligerents?" "Can Christian make
war on an intidel on 10 other ground but
his infidelity?" HAS the Pope right to
sanction war against an infidel?" Can
the Emperor sanction it, since he is not
the master of the world?" 'Are we
bound to keep faith with the enemy?"
Such were the problems which presented
themselves to advanced medieval minds,
and from their consideration and discus
sion came the beginnings of general,
! though indefinite, understanding among
nations that war should be carried on in
certain ways, and that departure from
these methods was a violation of agree
ment.
THE ORIGIN OF TREATIES.
But here again a difficulty was at once
presented. War is an appeal not to in
telligence, but to force. 1t is the substi-
tuition Of force for law. War is the end of
all agreement, and when war breaks out
treaties and national cOmpacts are swept
aside as so much troublesome rubbish.
If one of the combinations chooses delib-
eratively to proceed by methods not gem
orally recognized as admissible, the other
has no recourse but by retaliation. When
the Confederates, for instance, began
hanging General Sherman's foragers in
Georgia, an act was committed which
could not but be condemned by the gem
eral agreement Of nations, and yet Sher-
man was forced, not to demonstrate, for
that were vain, but to retaliate by hang
ing some Confederate prisoners, and send
ing word to the enemy that similar repri-
sails would, in the future, follow similar
barbarities. The efforts of statesmen in
ehectlng agreements between nations
have been directed, not SO much as to
regulate war, since the guidance of mad
dened force is well nigh impossible, but
by national cOmpactS, treaties and agree
ments Of various kinds to bring about
such a state Of things among the nations
of the earth that wars should not take
place.
In ancient times, when nations rarely
came in contact save in q hostile way,
there was little use for treaties, and such
as were made were generally alliances,
offensive and defensive, of two or more
Powers against a common enemy. But
with increasing trade and commerce,
with greater facilities for travel, with
tourists and merchants passing to and
fro, need arose for protection to the citi-
zens or subjects of one country when in
the territorial bounds of another; security
was needed for their property in transit
between harbors, and hence commercial
treaties were made. With more letter
writing came demand for the extension
of postal facilities, and hence arose postal
treaties; with increased facilities for es-
cape the criminals of one country could
flee to another and find security under a
different flag, butas no country desired to
be refuge for the vicious classes of an