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visibly relaxing its grasp. If you require proof, look
to the progress which anti-slavery sentiment has made
within the last year look to the practical results of
that progress in the benevolent mission to Port Royal
to provide for fugitive negroes look, lastly, at the
feeling which the proclamation of emancipation has
called forth. The friends of slavery predicted that
the proclamation would shiver the North into frag-
ments. On the contrary, it is rapidly uniting all that
is best and most hopeful in the Northern people,
rallying them to a common principle, and, in the
fire of a noble enthusiasm, welding them into a
single mass. At such a time as this, is it for Eng-
land to see only the difficulties of the problem to be
nice in scrutinizing motives, and, in her anxiety lest


emancipation should be accomplished in some un-
orthodox fashion lest it should be dictated by some
principle less sublime than the purest philanthropy, to
throw the whole weight of her splendid influence into
the scale of the slaveholder ? I cannot think so. I
cannot believe that this unnatural infatuation for a
Slave Power is destined to be a permanent attachment.
It is but a transient passion, the offspring of pique and
anger, from which ere long she will shake herself free.
Yet a little, and she will resume her older and better
character, as the England of Clarksonand Wilberforce,
the emancipator of slaves, the champion of the
oppressed, and the friend of freedom, in every form,
and in every quarter of the globe.



IT is now about two and a half centuries since
Grotius, in his great work, gave to the world the first
clear outline of a scheme of international jurisprudence.
The subject has since engaged the thoughts of many
very learned and of a few very able minds. The
relations and mutual pretensions of nations have,
moreover, during this period, been submitted with
the growth of international trade, the collision of
international interests incident to the peopling of a
new continent, and a succession of wars to the ordeal
of a long and diversified experience ; and the practices
thus established and mutual concessions thus obtained
have, under the manipulation of Prize Courts and
diplomatists, been wrought into a tolerably compact
and coherent system. Yet, notwithstanding the pro-
gress made in the practical art of administering inter-
national affairs, and notwithstanding the existence of
many valuable treatises in the nature of digests and
expositions of the actual international code, or of por-
tions of it, of such works, for example, as those of

* Fortnightly Review, November 1865.


Ortolan, Wheaton, Kent, Manning, and others it
must, I think, be admitted that little has yet been
done for the philosophy of international law. Bentham,
Austin, and the two Mills have indeed given us some
valuable analyses of fundamental juridical ideas ;
Mr. J. S. Mill, in particular, has in detached essays
offered some pregnant suggestions ; and more recently
Mr. Maine, in his not less profound than learned
wofk on " Ancient Law," has incidentally thrown a
clear light on some recondite points in the develop-
ment of international jurisprudence. Yet a work
treating international law as a whole, in a philoso-
phical spirit, and with reference to the altered con-
ditions in many important respects of international
intercourse, is still, I think it must be said, a deside-
ratum in philosophical literature. Upon such ques-
tions, for example, as the true nature of international
law, its proper sanctions, its authoritative exponents,
the grounds of its obligation, the limits of civilization
within which its rules may be justifiably enforced
how utterly vague, unsatisfactory, and fluctuating are
the views of even its professed cultivators ! There
are those, no doubt, who will tell us that all this is
of little consequence. Practice, we know, precedes
theory; and those people will probably add that it
does not much matter if theory ever follow. But,
with due respect, I must contend that it does matter ;
that, albeit the first essays in every path of art must
needs be made somewhat blindly and on trust, for con-
tinuous and sustained progress, theory is necessary :
a survey of the ground passed over, an observation
of our actual position with reference at once to the


goal in view and to the state of other but kindred
arts, are important conditions in order to a fresh and
effective start. It seems to me that the study of
international law has just reached that stage at which
a resort to the chart and the compass becomes neces-
sary ; at which, without this assistance, we are in
danger of returning on our course, and wandering
through the mazes of exploded systems and obsolete
ideas ; at which, therefore, the most effective service
that can be rendered to the course of international
jurisprudence, even in the most strictly practical
sense, will consist in a determination of its proper
character, its ultimate aim, its relation to other con-
nected departments of human speculation and action
in a word, in setting forth a true philosophy of inter-
national law. To the ability and learning requisite
for such a task the present writer makes no preten-
sion ; his purpose at present does not extend beyond
an attempt to discuss a few fundamental problems in
the light of modern facts and of some recent con-
tributions to ethical and juridical science, and with a
view to exhibit, by way of illustration, the mode in
which an improved philosophy of this branch of study
may be made conducive to the work of practical reform.
It has already been intimated that the proper
nature of international law is still a subject of con-
troversy. On the part of Bentham and his followers,
and, not less by a very different school, Savigny
and those who accept his teaching, a distinction in
character has been recognized between the rules
which regulate international intercourse and the
municipal code of a State. On the other hand, there


are writers on international law who do not perceive,
or refuse to acknowledge the relevancy of, this dis-
tinction. Dr. Phillimore and Dr. Twiss, for example,
have in recent publications contended that international
law is " law " proper law, that is to say, in the same
sense in which an Act of Parliament is " law." Now
I am anxious, so far as possible, to avoid verbal
controversy, and I shall therefore content myself with
observing that there are at least two distinctions in
the case, which, whatever we may think of their
importance, cannot, as facts, be gainsaid. Inter-
national law, unlike the civil code of a State, does not
proceed from any determinate source generally recog-
nized as authoritative ; and, secondly, it is not enforced
in this respect also differing from the civil code of a
State by any definite and regularly applied sanc-
tions. These distinctions, I repeat, whatever opinion
we may hold on the verbal controversy, must as facts
be admitted. And this negative position gained, it
remains to inquire what, then, is the source of inter-
national law, and what is the character of its sanctions ?
To the former question, the answer given by
Bentham, and since his time more precisely stated by
his disciple Austin, must, I think, be allowed to be
satisfactory. International law is merely the formal
expression of the public opinion of the civilized world
respecting the rules of conduct which ought to
govern the relations of independent nations, and is
consequently derived from the source from which all
public opinion flows the moral and intellectual con-
victions of mankind. That this is the true character
of international law may be shown as well historically


as on abstract grounds from its genesis in the
writings of publicists and the decisions of international
tribunals, no less than from the nature of the case,
by reference to the sphere of its operations as affect-
ing the conduct of independent States. Whence, for
example, did Grotius derive that body of doctrine
which he gave to the world as the " Law of Nations " ?
From two sources, he tells us, the " Law of Nature,"
and the agreement of mankind as evidenced in the
testimony of the learned. But what are the law of
nature and the testimony of the learned, in connection
with the topics to elucidate which they are appealed
to by Grotius, but the views of social morality enter-
tained either by Grotius himself, or by other eminent
writers in times past and present in a word, the
opinion on international subjects, actual or prospective,
of the civilized world ? Subsequent writers on the law
of nations have, for the most part, followed substan-
tially the method of Grotius. The actual law of
nations they have taken from the existing opinions
and practices of mankind ; while the law of nature
that is to say, their own views of the highest social
morality has supplied them with the ideal to which
they have sought to elevate the actual usage an ideal
which has from age to age been ever varying with the
progress of ethical speculation. Prize courts, again,
congresses, and other international tribunals the ac-
tual administrators of the international system have
followed more or less implicitly the customs of the
times and the rulings of the publicists ; while the
decisions of these tribunals have in turn furnished
precedents from which new rules have been evolved.
P. E. i


and the law of nations further extended and enriched.
The staple of the "Law of Nations" is thus public
opinion public opinion embodied in usage, expounded
and generalized in the treatises of publicists, inter-
preted and enforced in international courts. And,
indeed, from the nature of the case, what else than
public opinion could international law embody ? What
but moral control can sovereign Powers, consistently
with their sovereign character, acknowledge and
undergo ?

And when, in the second place, we ask what are the
sanctions of international law, it is plain, from what
has been already said, that they can be only such as
opinion has at its disposal, and may, therefore, best be
gathered by observing the action of social opinion in
the sphere within which we are most familiar with its
operation the sphere of private life. Opinion, it
is obvious, may enforce its behests by either of two
means by physical coercion, or by moral suasion.
In the early stages of social progress opinion makes
its energy felt chiefly, or at all events largely,
through the former means. A violation of the minor
morals of life a disregard in any form of the rules
prescribed by social opinion is commonly followed
by personal chastisement or by forcible expulsion of
the offending party from the society whose rules he
has set at naught. But as society advances, a recourse
to violence comes to be less needed in proportion as
the moral elements in the human character grow in
power. Praise and blame are gradually substituted
for the coarser sanctions of the earlier state. Already
this process has been carried so far in the more


advanced nations of Europe and America, that these
the moral sanctions of opinion are now found ade-
quate in the main to all the ends of social intercourse.
In Great Britain and the Free States of the American
Union, they may be said to have absolutely superseded
all other modes of enforcing social morality so far as it
lies outside the sphere of municipal law; while even
in continental countries, the resort to physical violence
in support of social conventions is becoming rare, and
is evidently doomed to give way before the better
influences of the times. Now this being the history
of the sanctions of opinion in the social life of indi-
viduals, the question occurs, how far we are justified
in anticipating a like development in the social life
of nations.

And here it is, at the first glance, obvious that,
at all events up to the present time, mankind has
nowhere, even in the most advanced nations of Chris-
tendom, reached the stage at which the physical
sanctions of opinion can, in international affairs, be
safely dispensed with. Not to refer to -America, the
present state of Europe, garrisoned over its whole
extent with immense standing armies, at the cost of
financial embarrassment and of industrial and com-
mercial depression to the States which maintain them,
sufficiently refutes the notion a refutation which might
be supplemented at pleasure from the events of
current history. But the mere fact that opinion in
international affairs is not yet powerful enough to
serve as its own sanction, by no means proves that
it may not become so ; and the question for the philo-
sophical publicist is, not simply what is now the

I 2


efficacy of public opinion in the affairs of nations,
but what, in the advance of civilization, public
opinion is capable of becoming. Is a state of mutual
distrust and suspended hostility destined to be the
normal and inevitable condition of independent States ?
or may we reasonably look forward to a time when,
in the intercourse of nations, as has already happened
in the intercourse of individual men, submission to
opinion may supersede the necessity of violent expe-
dients, and " the kindly earth may slumber, lapt in
universal law " ?

In an essay on international law by the late Mr.
Senior, published originally some twenty years ago
in the Edinburgh Review, but revised by him just
before his death, one view, perhaps the prevailing
one, on this question, is stated with Mr. Senior's
usual emphasis :

" The fear of physical evil," says Mr. Senior, ' to the
persons and properties of the members of the community is
the principal restraint on the conduct of nations. . . . On the
other hand, nations are not restrained by fear of the loss of
honour ; for honour, in the sense in which that word is ap-
plied to individuals, does not apply to them. It consists in
the absence of certain imputations which exclude a person
tainted by them from the society of his equals. But as a
nation cannot be excluded from the society of other nations,
a nation cannot lose its honour, in the sense in which honour
is lost by an individual. Never has the foreign policy of
France been more faithless, more rapacious, or more cruel,
than during the reign of Louis XIV. For half a century she
habitually maintained a conduct, a single instance of which
would have excluded an individual from the society of his
equals. At no time was France more admired and even
courted. At no time were Frenchmen more welcome in every
court and in every private circle.


"What are often called injuries to the honour of a nation
are injuries to its vanity. The qualities of which nations are
most vain, are force and boldness. They know that, so far
as they are supposed to possess these qualities, they are
themselves unlikely to be injured, and may injure others with
impunity. What they most fear, therefore, is betraying
timidity, which is both an index and a cause of weakness.
But timidity, which excludes a man from society, makes a
nation only the more acceptable. To call, therefore, any
manifestation of cowardice, however gross, a loss of national
honour, is illogical. It implies the double error of applying
to a nation a liability which is peculiar to an individual, and
of inferring a result, which, even if that liability existed
among nations, would not follow from the supposed cause."
Historical and Philosophical Essays, vol. i. pp. 147, 149.

If this statement correctly represents the moral
conditions of international life if nations are not only
not sensible of the feeling of honour, but incapable
of becoming so the question just proposed for con-
sideration must of course be resolved in the negative.
But, not to dwell upon the obvious inadequacy of
Mr. Senior's definition of "honour" -a definition
which confounds the feeling itself as a principle of
conduct with a particular, and by no means an essen-
tial or invariable, sanction of the conduct which it
prescribes it would not be difficult to show that the
same line of argument might with equal plausibility
be used to disprove the existence and efficacy of
private honour. Never, he tells us, was the foreign
policy of France more faithless and rapacious than
during the reign of Louis XIV., when France was
universally courted and admired ; but what were the
private morals of high society in France, and we may
add in England, during this time ? What is the kind


of life disclosed in such books as the Memoirs of
Grammont and St. Simon ? Yet because Sedley and
Villiers were " admired and courted " by the society
of the court of Charles II., are we to conclude that
honour has no existence amongst men ? that the
horsewhip and the pistol are the only effective
restraints upon social immorality and insolence ?

With most readers of the passage I have quoted,
the difficulty, I apprehend, will be not to refute Mr.
Senior's reasoning, but to understand how such

o *

reasoning could have proceeded from a man of the
world. The statement, for example, that " to call any
manifestation of cowardice, however gross, a loss of
national honour, is illogical," is as extravagantly at
variance with the most widely-felt sentiments and
the most ordinary language of mankind, as if it had
proceeded from the merest recluse and bookworm.
It is a curious example of that mingled cynicism and
love of paradox which gave so marked a bent to
Mr. Senior's mind. How little the views here
advanced affected his general judgments on inter-
national affairs, is shown by other passages in the
same volume. Referring to the part acted by Great
Britain in reference to the slave-trade, he remarks
that an impartial observer, contemplating her conduct,
"would admire the self-devotion with which England


had encountered offence, misrepresentation, expendi-
ture of treasure and life, and even the chances of
war, in the hope of preventing evils with which she
is acquainted only by report, and of civilizing, or at
least improving, nations of which she scarcely knows
the names. He might doubt whether the means


adopted were wise. He might know, indeed, that
their failure has been most complete and most
calamitous ; but he could not deny their generosity."
(Vol. i. p. 56.) And again, discussing the conduct
of England in the affair of the " Russo-Dutch Loan,"
he remarks : " We have little doubt that, if the
question could have been submitted to a legal
tribunal, judgment would have been given against
Russia. But as the decision rested with England,
she thought that it became her to decide against
herself. She has continued her payments as if
no severance between Holland and Belgium ever
occurred." (Vol. i. p. 81.) Is not this precisely the
motive from which, in private life, a man of decent
feeling would act in an analogous case ?

The truth is, that in the seventeenth century
public opinion was, in its influence on the internal
no less than on the external affairs of nations, still
in a rudimentary state ; and the progress which it
has since made in the former of those spheres is
highly noteworthy for its bearing on the question we
are now considering. More particularly is this the
case as regards the efficacy which opinion has since
attained in that province of internal affairs which is
concerned with political life. For, without at all
overrating the present state of political morality in
this and other countries, we may yet safely affirm
that, even within the memory of living men the fact
will of course be still more apparent if we extend our
comparison further back it has undergone a vast
improvement, an improvement which is due entirely
to the growing influence of public opinion. And if


opinion has been powerful enough to accomplish this
reform in the conduct of internal politics to restrain
gross cupidity and self-seeking in public men, and to
enforce a decent consistency and moderation on
political parties why should we be less sanguine of
its efficacy in the wider field of international morality ?
The passions which impel nations into conflict are not
stronger than those which, in domestic controversies,
actuate statesmen and parties : the interests involved
in international contests are rarely so palpable or
direct as those which depend on the issues of internal
political strife. Why should a force which has been
found regulative of the former influences prove
impotent in controlling the latter ?

And the reasonableness of sanguine expectation
upon this head will be the more evident when we
reflect on the causes which have led to the more rapid
growth of public opinion in domestic than in inter-
national affairs. The condition of a public opinion
is, that there should be a public, conscious of common
objects, and capable of interchanging ideas. This
condition has already for a considerable period been
pretty fully realized in the domestic life of most
civilized states ; it has followed in the wake of
popular education, a free press, good roads, and im-
proved postal communication. But in their bearing
upon international society, these agencies are only just
coming into operation. It is not strange, therefore,
that public opinion in this wider sphere should still be
immature and weak. The rapidity, however, with
which it is forming under the influence of expanding
commerce, increasing study of the modern languages,


railways and steam navigation is one of the most
prominent and remarkable facts of the present time.
It would be easy to adduce evidence of this from
patent manifestations in contemporary history, such,
for example, as the enhanced and constantly growing
interest taken by the British public in questions of
foreign policy a phenomenon which, it is said,
finds its parallel in other European countries. One
instance of this kind deserves special attention in
connection with the present argument

The anxiety of the people of the Free States of the
American Union to obtain the sympathy of foreign
nations, but more especially that of the people of
Great Britain, in their struggle with the insurgent
slaveholders, has been a subject of general observation.
By a certain class of writers this susceptibility has
been regarded as an indication of weakness in the
national character, and has been made the mark of a
good deal of flippant ridicule. That a great people
should be so sensitive of its fame with foreign coun-
tries as to keep up through its press a standing con-
troversy in defence of its conduct, that it should
send deputations across the Atlantic charged, not with
soliciting aid from foreign governments, but with
convincing foreign people of the justice of its cause,
that it should wince under harsh criticisms, chafe at
ungenerous taunts, while it equally welcomed every
expression of disinterested approval, or even of dis-
criminating appreciation, all this has seemed infi-
nitely undignified and ridiculous to a certain order
of minds. I own, however, that the phenomenon
seems to me one of most hopeful augury ; forming, as


it does, the most signal and cogent evidence which
the world has yet received of the growth of an
influence on which more perhaps than anything else
depends the possibility of any important amelioration
in the future relations of independent States. It is an
example on a grand scale of an international sentiment
precisely similar in kind to that which, through its
influence on individuals, has been the chief instrument
of such improvement as has yet been attained in the
domestic life of nations the desire to stand well in the
estimation of our fellows the sense of discomfort and
mortification which is felt under the consciousness of
their disapproval. I shall be told, perhaps, that the
instance which I have taken illustrates rather the weak-
ness than the strength of international public opinion,
since the people of the United States have not suffered
themselves to be turned from their object by even the
strongly expressed opinion of Europe. But, in the
first place, it is by no means clear that the verdict
of Europe has been unfavourable to the cause of the
United States. The ruling classes in England, and

Online LibraryJohn Elliott CairnesPolitical essays → online text (page 9 of 27)