The Wichita daily eagle. [volume] (Wichita, Kan.) 1890-1906, 1896-08-21

| Addresses American Lawyers on Inter
national Law-I,efines it Not Vague
and Uninteiligibls 0lereIy Because Tn
With statute Decentralization Fine
Thing in Theory. Though Even the
Theory, Fully Carried Out, Defeats
Itself--CompIiments Uncle sam.
| Saratoga, N. Y, Aug. 20-The annual
| address before the American Bar asso-
citation by the Right Honorable Lord
Russell of Killowen, LID, G. c. NJ. g.,
etc, lord chief justice of England, was
delivered today, Lord Russeils topic
being international Law" The ad-
dress was as follows:
Mr.. President: My first words must
be in acknowledgment of the honor
done me by inviting me to address you
on this interesting occasion. You are
congress of lawyers of the United
States, met together to take counsel
in no narrow spirit, on questions al
fecting the interests of your profession.
]. ond the other han, come from 1he
judicial bench of distant lana.
Thought we represent political COM
munities which differ widely in many
respects, in the structure OF their con-
situations and otherwise, we yet nave
many things in common. eW speak the
same language; we administer laws
based on the same juridical conceptions;
we are co-heirS in the rich traditions OF
political freedom long established. and
we enjoy in common literature the
%I,n I'll n a
known. Beyond this the unseen ''crim-
son thread of kinship, stretching from
the mother islands to your great CONT
nent, unites us and reminds us always
that we belong to the same, though
mixed, racial family. This considera-
ton is prominent among those which
suggest the theme on which 1 desire to
address you-namely, international law.
THE SUBJECT DEFINED.
1 sail the rules which civilized nations
have agreed shall bind them in their
conduct inter Sc, by the Benthamite
title, international law" And here,
Mr.. President, on the threshold of my
subject, 1 find an obstacle in my way.
1t is said by some that there is no inter
national law, that there is only bundle
more or less conform, as
more or less confused, of rules to which
nations more or less conform, but that
International law there is none. The
late Sir James F. Stephen takes this
view in his History of the Criminal
Law of England" and in the celebrated
"F'ranconia" case the late Lord Cole
ridge speaks in the same sense. He
says: Strictly speaking, fnterna ton
al law is an ineXact expression and it
apt TO mislead if its exactness is not
kept in mind. Law implies a lawgiver
and a tribunal capable of enforcing it
and ooercing its transgressors." In
deed, it may be said that with few ex-
ceptionS the same note is sounded
throughout the judgments in that case.
These views, it will at once be seen, are
based on the definition Of law by Austin
in his Province of Jurisprudence De-
termined,'' namely, that law is the
command Of a superior who has coer-
Give power to compel obedience and
punish dsobedience. But this defni-
ton is too narrow; it relies too much
on force as the governing idea. If the
development of law is historically con-
it will be found to exclude that
body of customary law which in early
stages of society precedes law which
assumes definitely the character of pos
sanctions. But even in societies in
which the machinery exists for the
making of law in the Austinian sense,
rules or customs grow up which are
laws in every real sense of the word, as,
for example, the law merchant. Under
later developments of arbitrary power
laws may be regarded as the command
of superior with a coecive power in
Austin's sense: Quod placuit principi
legls Vigorem habet. In stages later
still, as government becomes more
frankly democratic, resting broadly on
the popular Will, laws bear less and less
the character of commondS imposed by
a coerclVe authority, and acquire more
ana more the character of customary
law founded on consent. Savigny, in
deed, says of all law that it is first de-
veloped by usage and popular faith,
then by legislation and always by in
ternal silently operating powers, and
not mainly 10y the arbitrary will of the
iawgiver.
What, then, is International law? L
know no better definition of it than
that IL is the sum of the rules orusages
which civilized states have agreed shall
be binding upon them in their dealings
with one another.
NO INTERNATIONAL CODE.
We do not indeed find all those r,1es
recorded in clear language-there is no
code. We look for them
in the long records of customary ac-
ton; in settled precedents; in treaties
affirming principles; in state doom
menus; in declarations of nations in CON
clave-Which draw to themselves the
adhesion of other nations; in declara-
tons or text writers of authority osn-
eraily accepted, and, lastly, and with
most precision, in the field which they
cover, in the authoritative decisions of
prize courts. From these sources We
get the evidence which determines
whether or not particular canon az
or particular principle. has
or has not received the express or i'm
piled assnet of nations. But interna-
tional law is not as the twelve tahles
OF ancient Rome. 1t is nos a closed
book. Mankind are not stationary
Gradual change and gradual growth of
opinion are silently going on. Opinions
doctrines. usages, advocated BY acute
thinkers. are making their way in the
world OF thought. They are nor VET
part of the law Of nations. In truth
neither doctrines derived from what is
called the law of nature lin any OF It's
various meaningS) nor philanthropic |
ideas, however just or humane. nor the |
opinions Of text writers, however emf
nent. nor the usages OF individual states |
none of rhese. nor all combined, con
sti;ute international law.
But while maintaining this position I
a gree with Woolsey when he SAYS that /
if International law were not mad. up /
Of rules for which reasons could be /
given. satisfactory TO mans inteilecua! 1
and moral nature liz would not deserve I