SIR HENRY MAINE ON INTERNATIONAL LAW.* Tats book contains the
lectures delivered by Sir Henry Maine during his short tenure of the Whewell Professorship at Cambridge, the manuscript having been prepared for publica- tion by Mr. Frederic Harrison and Mr. Frederick Pollock, two of Sir Henry Maine's executors. The book is not to be regarded as one more in the long list of text-books dealing exhaustively with the subject; and it may be suspected that there would have been modifications, as well as additions, if the author had lived to publish a complete work on International Law. But
• International Law. By Henry Sumner Maine, ILO S.I. London: John Murray.
such as it is, this collection of lectures is a valuable con- tribution to the literature of the subject, the more so because Sir Henry Maine's peculiar power of adding a charm to subjects unattractive at first sight, and of leading the general educated public into paths previously sacred to the specialist or the student, has in International Law a peculiarly suitable field for its application. The causes of the unpopularity of this subject, especially among English readers, are not difficult to detect : the width and complexity of the subject. ranging as it does from such topics as those covered by the treatise of a German publicist on an Ambassador's Becht mit seeks Pferden :It fahren, to such topics as the bombardment of towns by invaders, and still more the necessary uncertainty of the rules in force and the sanctions by which they are sup- ported, create difficulties which are aggravated by the mode of treatment adopted by the majority of writers who have thought themselves qualified to declare the law to sovereign States. Under their treatment, complexity often passes into confusion, and uncertainty becomes bewildering. It is re- freshing to turn from such writers to an author of such unrivalled lucidity and precision of statement as Sir Henry Maine.
The first two lectures are appropriately devoted to an attempt to settle some fundamental questions as to the Origin and the Authority of International Law. The beginning of our present system of rules of external national conduct (though not, as has sometimes been recklessly asserted, of the conception of rights and duties belonging to States) dates from the publication, in the first half of the seventeenth century, of Grotius' famous work, De d'are Belli ac Pacis. The causes of the immediate and enthusiastic acceptance by practical statesmen of the system laid down by this book, the bulk of which seems to modern readers so strangely unpractical, have always constituted a difficult historical problem ; and the solution suggested by Sir Henry Maine, though valuable and interesting, appears to us to be hardly adequate. Briefly stated, that solution is as follows : that the process by which International Law obtained authority in Europe was a late stage of the same process by which Roman law had obtained authority over the same part of the world, a process which consisted in the reception of a body of doctrine in a mass by specially consti- tuted or trained minds, followed by acceptance by the generality who were subject to the influence of this literate class : and he adds that the fact that the doctrine in question was based on the Jus Gentium of Roman law was important in promoting its establishment in countries where Roman law was supreme. Now these causes, though unquestionably most important in determining the ultimate acceptance and permanence of the system founded by Grotius, will hardly account for the suddenness of its success. This we are inclined to attribute in part to the admirable judgment shown in the actual rules which Grotius established (whatever we may think of the grounds on which many of them are apparently based), but mainly to the revulsion of feeling, arising universally after the horrors of the wars of religion, during which, as Grotius declared,—" When arms were once taken up, all reverence for divine and human law was thrown away." In the Thirty Years' War, the doctrine that in war no rules are binding was certainly worked out to its logical conclusion ; and the result was a general readiness among Sovereigns, statesmen, and Generals to accept any sound and practical body of rules which would mitigate the horrors of war by regulating its conduct. To have established such a body of •rules was, in his own day, Grotius' principal distinction, and we may fairly say that the Jus Belli carried the Jus Pacis with it into general favour, the latter having also the recommendation of being based on the principles and couched in the language of the great legal system which prevailed throughout Continental Europe. With regard to the basis of the authority of the system of International Law when once established, Sir Henry Maine supports the doctrine of the lawyers and states- men of the United States, who " regard the acknowledgment of and submission to the international system as duties which devolve on every independent sovereignty through the fact of its being admitted into the circle of civilised Governments?' He rejects Lord Chief Justice Cockburn's view that States are bound only by their assent to International Law, and that this assent " must somehow be conveyed by the acquiescing State in its sovereign character, through some public action which its Constitution recognises as legally
qualified to adopt a new law or a new legal doctrine; that is, in Great Britain by Act of Parliament, or by the formal declaration of a Court of Justice." The weak point of the American doctrine appears to be that its advocates tend too much to regard International Law, like their own Constitution, as something not only clearly and easily ascertainable, but also fixed and permanent, and not a creature of change and development. The growth and the change of the system, though they may be due to the influence of the literate class to whom Sir Henry Maine attributes so much, yet can hardly be said to produce rules binding on the several States until they have been recognised and assented to by each State " in its sovereign character."
The reader not interested in the philosophy of law will turn with relief from these subtleties to the lectures which form the bulk of the book, those containing an exposition of the rules of warfare. In these lectures the author has found no scope for originality of treatment, but has been content to set out in eminently readable form the more important of the rules to be found in the ordinary text-books. His account of the different limitations on unnecessary barbarity in the conduct of war is particularly interesting ; and it is worth notice that he declares that "it would be only just to admit" that "the Power which has done most to mitigate the cruelties of war" is Russia. So in another place he asserts that " the first great attempt which was made after the epoch of Grotius to give general fixity and to humanise the law of land war was made almost in our own day by an unfortunate Sovereign to whom justice has never been fully done, Alexander II. of Russia." To discuss the various conventions and negotiations, success- ful and unsuccessful, promoted by that Sovereign with a view to the formation of agreements accepted by all civilised States which may be the basis of an ultimate international code, would carry us beyond the limits of a review ; but such attempts, together with the various manuals for the use of officers in the field, on which Sir Henry Maine has some instructive remarks, are most important as contributions to that certainty and unquestioned effectiveness which cannot yet be attributed to the rules of warfare.
The part of Sir Henry Maine's book which is likely to excite most interest is in one sense the most disappointing. The founder of the Whewell Professorship has by his will left a direction to the Professor for the time being that he shall ‘. make it his aim, in all parts of his treatment of the subject, to lay down such rules and suggest such measures as may tend to diminish the evils of war, and finally to extinguish war among nations." This laudable suggestion appears to be based on the view that nomination by the Vice-Chancellor of Cambridge University, and the other electors to the Whewell Professorship, in some way entitles the nominee to "lay down rules" to the masters of legions, or, at all events, upon the assumption which, as Sir Henry Maine points out, is still made, and in his opinion not quite fortunately, " that the race of law-creating jurists still exists." Sir Henry Maine formed far too correct an estimate of his proper functions as a Professor of International Law, to attempt to give play to any inclinations of his own in laying down rules and his acute intellect and his freedom from the bias of sentimentality did not allow him to accept any of the measures suggested in our own no less than in previous ages as panaceas for the evil of war, by persons whose enthusiasm overbears their critical powers. He even says that " there is a strong presumption against any system of treatment which promises to put a prompt and complete end to it." But he so far con- sidered himself bound by the directions of the founder of his office, that he devoted the closing lecture of the series to " Proposals to Abate War ;" and the curious reader who turns to this lecture will find some very valuable criticisms and suggestions. Arbitration, the favourite remedy for war with the Peace Society, is evidently regarded by Sir Henry Maine with considerable mistreat ; and to the ordinary familiar arguments directed against its practical utility, he adds a criticism upon the usual composition of Courts of International Arbitration. He points out that " an indis- pensable element in such a Court is one or more of the class of lawyers who are commonly called jurists." Now, in England, owing to transformations of the Ecclesiastical and Admiralty Courts, this class of lawyers, who were specially trained in International Law and Civil Law, has almost or altogether disappeared ; and on the Continent, most famous civilians are, in fact, " salaried functionaries of modern chanceries," whose opinions are inevitably coloured by official devotion to the interests of their re- spective Governments ; the result is, that " nobody can quite say at present what a jurist is." A further defect in the only form of arbitration hitherto adopted is the tendency of Courts constituted only for the particular occasion, to consider the question at issue as an isolated question, without regard to the importance of the decision as a precedent likely to establish a permanent rule,—a tendency conspicuously shown in the most famous modern example of arbitration. Sir Henry Maine suggests as a remedy the establishment of a permanent Court of Arbitration ; but he fully admits that any such scheme has little chance of efficacy while International Law is not supported by the force which is at the back of every municipal tribunal. At the conclusion of his book, Sir Henry Maine calls attention to the value as a guarantee of peace of a succession of Neutral Leagues composed of States interested in the avoidance of war, who determine to isolate a certain number of questions, and by their authority, or by force. to prevent a war from arising out of a dispute on one of these questions. But this expedient, though it deserves grateful recognition for its actual success on recent occasions, is not likely to inspire much confidence in those who, on the one hand, remember the issue of the Holy Alliance, and who, on the other hand, are not deaf to the lesson taught by history, that no alliances are likely to be firm when conflicting interests arise. The fact is, that such Leagues when strong are likely to be dangerously tyrannous, and when weak are certain to fail. And when they fail, their result is likely to be that the conflagration which they attempt to isolate spreads the more widely and more ruinously. The conclusion to be drawn from the sound and sober criticisms in the closing lecture, though it is not expressly stated by the author, is that panaceas and nostrums for extirpating the evil of war are not only useless, but dangerous ; and that an abatement of the evil is not to be hoped for, except from the teaching of experience and the growth of sound and humane public opinion.
Previous page
