were disciples of the first theory, owing to their belief in a Law of Nature applicable to States; but they did not distinguish it clearly from the second, and their mixed methods of thought have often been followed by succeeding writers. It can, however, be shewn that

(a) The theory of a Law of Nature is false historically, and untenable philosophically in that it confounds together the actual and the ideal.

(b) Those who believe in it differ greatly as to the character and commands of the so-called Law of Nature.

(c) States appeal in their controversies not to innate principles and absolute rights, but to rules which can be proved to have been acted upon previously in similar circumstances by all or most civilised nations.

We, therefore, hold that the rules of International Law are to be discovered by observation of the practices of States in their mutual dealings, and that its method is mainly historical and inductive. But ethical considerations are not to be altogether banished, because sometimes there are two or more currents of practice; and when practice is diverse law is doubtful. In such cases the opinions of jurists should be given in favour of those rules which

Moreover new

seem most just and humane. cases often arise unlike any that have been decided before. New rules are then wanted, and in their creation moral principles should be allowed preponderating influence. International Law advances by means of the growth of opinion; and to its students belongs the responsibility of influencing the minds of men in favour of righteousness in all transactions between States, though they must never be led by moral enthusiasm into declaring a good rule to be law before it has met with general acceptation.

(2) Whether International Law is, properly speaking, law at all.

Most of its rules lack a definite sanction, and therefore their claim to be considered laws is generally denied by English thinkers, who accept Austin's account of Law, and place them among "the positive moral rules which are laws improperly so called." It should, however, be noted that

(a) The rules of maritime capture have very definite sanctions, and are therefore laws according to the strictest Austinian

canons.

(b) The Austinian definition of Law is not the only one possible. If we follow it in the stress it lays upon superior force, regarding laws as commands which man

is compelled to obey by fear of a definite evil, we must hold that most of the rules of International Law are not laws in the strict sense of the word. If on the other hand we lay stress rather upon the notion of order, regarding laws as commands which regulate conduct, then we may use the term International Law with perfect. propriety.

The conclusion then that we have arrived at with regard to the nature of International Law is that it must be looked upon as in the main a collection of positive rules actually observed among civilised States, but that whether we call it Law or not is a matter of nomenclature, of no very great importance as long as we have just ideas of its character, its methods, and its immense value as an instrument of human progress.

QUESTIONS.

1. Define International Law, and discuss the propriety of the name.

2. To what kind of States is International Law applicable?

3. What is the proper method to be followed in the study of International Law?

4.

Examine the theory of a Law of Nature.

HINTS AS TO READING.

Most of the questions discussed in this chapter are

dealt with by Hall in the Introductory Chapter and in Appendix I. of his International Law. Boyd's edition of Wheaton's International Law, Part I. Chapter I., should be read by those who wish to trace the various versions of the theory of a Law of Nature given by the great writers whose opinions are set forth therein. Most books on International Law commence with some account of its nature, and some attempt to define it. The best account of the Law of Nature and its relation to International Law is to be found in Chapters III. and IV. of Maine's Ancient Law. Lectures I. and v. of Austin's Jurisprudence set forth the commonly received views as to the nature of Law in general and International Law in particular. Comments upon them will be found in the works of Maine, Holland, Clark, Markby, and other writers on Jurisprudence. Sir J. F. Stephen discusses International Law in his History of the Criminal Law, Chapter XVI. His views are examined in the first of Lawrence's Essays on some Disputed Questions in Modern International Law, and amplified by his son, Mr J. K. Stephen, in his International Law and International Relations.

CHAPTER II.

THE HISTORY OF INTERNATIONAL LAW.

A. Periods.

There are few tribes so barbarous as not to have some customary rules for their guidance in dealing

with their neighbours; but International Law, as we understand it, is a system which has grown up among the nations of Europe, and has extended itself to all civilised communities outside the European boundaries. In its modern form it is scarcely three hundred years old; but rudimentary germs of it are to be found in remote antiquity. We may divide its history into three periods, each of which witnessed the application of a definite principle to the mutual relations of States.

(1) From the earliest times to the establishment of the Roman Empire.

(2) From the establishment of the Roman Empire to the Reformation.

(3) From the Reformation to the present time. Each of these periods gradually merges into its successor, and each is marked by the supremacy of a fundamental principle, which is for ages accepted without doubt or hesitation, is then questioned as it becomes less applicable to altered circumstances, and is finally superseded by a new principle adapted to the changed state of international affairs.

B. Principles.

We will now state the principles referred to above, and shew how each forms the basis of International Law in the period to which it applies.

(1) The principle of the first period was That States as such had no mutual rights and obligations, but that tribes which were con