APPENDIX A

CORRESPONDENCE RESPECTING THE CLASSICS OF INTERNATIONAL LAW

MY DEAR MR. WOODWARD:

WASHINGTON, D. C., November 2, 1906.

Pursuant to your advice that I put in written form suggestions made to you at various times, I now submit their substance in the form of a proposal, namely: that the Carnegie Institution undertake the republication of the various classics of international law; that the texts be edited in the original without note or annotation; that suitable introductions be contributed to each text by specialists of standing; that the texts be accompanied by translations when the originals are in foreign languages; that the individual texts selected for publication be edited by specialists in international law; and that the series as a whole be under the supervision of an editor-in-chief.

Grotius is universally considered as the founder of international law. This, like many general statements, is true enough, but likely to mislead. He was not the founder nor was he the father of the science, any more than Adam Smith was the founder or father of political economy as a science. Both these distinguished men published comprehensive works based upon competent and extensive knowledge of the theories of the past, and they did the work so admirably that the two books, "De Jure Belli ac Pacis," published in the year 1625, and the "Wealth of Nations," published in the year of our independence, have ever since remained as the first books, if not the sources, of international law and political economy.

The individual greatness of the work of Grotius consists in the fact that he built upon the past with full knowledge of the writings of antiquity and of the Middle Ages, and that his work gave definite form to the belief of the enlightened that the rigors and excesses of war might be regulated by reason and controlled in the interest of humanity. By treating the subject from a general as well as from a particular standpoint he laid the foundations of international law. Without the authority of a law-giver, he pointed out the unreasonableness of existing conditions, and by appealing to the authority of philosopher and poet, lawyer and statesman, he profoundly impressed his contemporaries and has completely captivated posterity. If international law is not the creature of his brain, Grotius must always be considered the first expounder of the subject, and in speaking of him it is scarcely an exaggeration to maintain that the changed and improved conditions of the present are largely attributable, directly or indirectly, to his life and work. The progress of well-nigh three centuries is summed up in the simple statement: should he write his work today he would term it the rights and duties of nations in peace and war rather than the rights and duties of nations in war and peace. Since the time of Grotius war has become in a way humanized, and peace bids fair to be the normal state of things.

International law is not, therefore, a creation of Grotius, although he was its first and its greatest expounder. We look beyond Grotius and see that the international law of today is rooted in a more remote past. We know, too, that Grotius was the culmination of a quiet and unsuspected development, not the sole figure in international law, although the predecessors are well-nigh invisible in the shadow of his presence. Loose and inadequate conceptions had developed until in Gentilis, a contemporary rather than a predecessor of Grotius, they took definite form and consistency and it would seem to be a fact, easily susceptible of proof, that the treatise of Gentilis, entitled "De jure belli libri tres," was the model of the immortal work of Grotius. As Professor Holland says, "the first step toward making international law what it is was taken, not by Grotius, but by Gentilis."

Grotius is, however, the middle point in the development of international law. To understand the law of nations as it exists and is applied today it is necessary to understand its past; and it is the veriest truism to maintain that the future can only be forecast by an adequate knowledge of the past as well as of the immediate present. If international law be considered as undergoing a constant growth and development, it necessarily follows that the law of nations must be studied in the light of its origin and history in order to obtain an adequate knowledge of the system at present and to predict with certainty the future development of the science.

If international law be looked at historically, it is seen that it falls into three great groups consisting, first of the predecessors of Grotius; second, Grotius, his life and work; and, third, the successors of Grotius. That the knowledge of any one is necessary to the

other needs no argument, but it is no easy matter for students in America to obtain the necessary materials for the scientific and historical study of the sources of international law.

I have found great difficulty in obtaining any of the works of the predecessors, and it is impossible for students of international law in our various colleges and universities to trace the history of international law to its sources. They may, indeed, find extracts from some of the predecessors in various books of authority, but they can not, as science demands, go to the source itself, examine it, and master it.

Believing, as I do, that international law is a growth just as truly as our Constitution is a growth, and realizing the difficulty of obtaining these various sources, it seems to me that the Carnegie Institution would perform a great service should it publish the texts of the predecessors in such shape and form that they might be placed in public libraries and in universities and colleges. This would perhaps not popularize international law, but it would bring the sources of international law to the people, at least to that section of the people that desires to investigate scientifically the origin of international law.

The importance of the predecessors has been pointed out in various works: by Kaltenborn in his admirable study on Die Vorläufer des Hugo Grotius auf dem Gebiete des Jus naturae et gentium (1848); by the late Professor Rivier in Holtzendorff's Handbuch des Völkerrechts, vol. 1, pp. 395 to 402, and more especially in the same author's learned Note sur la littérature du Droit des Gens avant la publication du Jus Belli ac Pacis de Grotius (1883); and, within the past two years, in a series of articles, fathered by Professor Pillet, entitled Les Fondateurs du Droit International (1904).

The most recent English work on international law is by Dr. Oppenheim, and in an apt paragraph he mentions the most important of the predecessors. That I may have authority for the view I am expressing, and at the same time keep my remarks within reasonable bounds, I quote the paragraphs in question:

The science of the modern Law of Nations commences from Grotius's work, "De Jure Belli ac Pacis libri III." because in it a fairly complete system of International Law was for the first time built up as an independent branch of the science of law. But there are many writers before Grotius who wrote on special parts of the Law of Nations. They are therefore commonly called "Forerunners of Grotius." The most important of these forerunners are the following:

(1) Legnano, professor of law in the University of Bologna, who wrote in 1360 his book "De bello, de represaliis, et de duello," which was, however, not printed before 1477.

(2) Belli, an Italian jurist and statesman, who published in 1563 his book, "De re militari et de bello."

(3) Brunus, a German jurist, who published in 1548 his book, "De legationibus." (4) Victoria, professor in the University of Salamanca, who published in 1557 his "Relectiones theologica," which partly deals with the Law of War.

(5) Ayala, of Spanish descent but born in Antwerp, a military judge in the army of Alexandro Farnese, the Prince of Parma. He published in 1582 his book, "De jure et officiis bellicis et disciplina militari."

(6) Suarez, a Spanish Jesuit and professor at Coimbre, who published in 1612 his "Tractatus de legibus et de legislatore"; in which (II, c. 19, n. 8) for the first time the attempt is made to found a law between the States on the fact that they form a community of States.

(7) Gentilis, an Italian jurist, who became professor of civil law in Oxford. He published in 1585 his work "De legationibus," in 1588 and 1589 his "Commentationes de jure belli," in 1598 an enlarged work on the same matter under the title "De jure belli libri tres," and in 1613 his "Advocatio Hispanica."

Gentilis's book "De jure belli" supplies, as Professor Holland shows, the model and the framework of the first and third book of Grotius's "De jure belli ac pacis." "The first step”-Holland rightly says "towards making International Law what it is was taken, not by Grotius, but by Gentilis." (International Law, vol. 1, pp. 76–77.)

I submit, therefore, that it would be a great boon to student and teacher alike to bring within the range of possibility the leading works of the predecessors of Grotius.

In the next place, I would propose an edition of Grotius to be edited in the light of present scholarship, an edition freed from the errors of the printer and cut loose from the mass of editorial note and comment which encumber the text. Until recently the

masterpiece of Grotius was not thoroughly understood because it was treated as an isolated work rather than as the growth of a lifetime. It has been discovered, however, that the masterpiece of 1625 was but the enlargement of a brief or legal opinion which Grotius prepared in 1604 when retained by the Dutch East India Company in an important prize case. The "Mare Liberum," published in 1609, has for two centuries and more been looked upon as a separate and independent work. The discovery in 1864 of the brief of Grotius, called "De jure Praedae," and its publication in 1868 show that this famous little work was chapter 12 of his original brief.

It therefore appears that Grotius began his professional life deeply interested in international law; that in one of his early and most important cases he outlined the subject in his brief on the law of prize; that he kept it by him, and in 1609 published a fragment of it, chapter 12, in separate form; and that the great work of 1625 was an elaboration of a lifetime's thought and study as outlined in the original brief.

The recovery of the tractate "De jure Praedae" is of the highest importance in considering the legal nature of international law; for if the law of nations was not born in the court-room, it was nevertheless cradled in a court of justice. The system is not the dream of a philosopher: it is the realized conception of a jurist and practitioner.

It is therefore obvious that a new and authoritative edition of Grotius should be prepared, which should contain the brief on the law of prize, with footnotes calling attention to the few and unimportant modifications of chapter 12 when published separately as the "Mare Liberum," as well as the text of the immortal three books on the Law of War and Peace. An edition of this kind, with proper introduction and translation, would be a great service to the cause of international law.

The successors of Grotius should, it seems to me, be edited and brought within the reach of the American people, and among these successors I would specially mention the following:

Richard Zouche, an Englishman who is not inaptly termed the second founder of the law of nations and whose little book appeared in 1650 under the title: "Juris et judicii fecialis, sive juris inter gentes, et quaestionum de eodem explicatio, qua, quae ad pacem et bellum inter diversos principes aut populos spectant, ex praecipuis historico jure peritis exhibentur."

Dr. Oppenheim says, and properly, that "This little book has rightly been called the first manual of the positive law of nations"; yet it is almost impossible to obtain this text, and there are very few students, indeed teachers, of international law who are at all familiar with its contents.

In the next place Zouche would be followed by the German Pufendorf, who attempted in his elaborate work "De jure naturae et gentium" (1672) to make international law a branch of the so-called law of nature, rather than a system of positive law.

The next great figure in the history of international law, whose authority is regarded as only less than that of Grotius, is the Dutchman Cornelius Van Bynkershoek, whose three works "De dominio maris" (1702), "De foro legatorum" (1721), and "Quaestionum juris publici libri II" (1737), are classics. They are, however, scarcely obtainable.

Christian Wolff was the immediate teacher of Vattel and to him modern international law owes much. Indeed, his two treatises on international law "Jus gentium methodo scientifica pertractatum" (1749) and "Institutiones juris naturae et gentium" (1750) supplied a body of doctrine which Vattel merely popularized in his famous book on the Law of Nations published in 1758. The pupil outdistanced the master in popular favor and Vattel is an authority in all parts of the world, while the name of Wolff is known only to the curious or the antiquary. Coin of the realm circulates freely, but bullion does not pass from hand to hand.

I have reduced my proposal to the minimum, and in mentioning these few among the many I would not exclude other works which have a solid claim upon the student of today. My immediate purpose is to outline a project, not to present it in detail. However, there are four works that should not be omitted from this brief outline:

Martens' "Causes Celèbres" (2d edition, 5 vols., Leipzig, 1858-61) should be translated and published in this country for the benefit of the student whose knowledge of French is faulty.

The decisions of Lord Stowell on international law should be collected and published in such a way that they might be readily obtained by the student.

The decisions of Chief Justice Marshall in international law are equal to his decisions in constitutional law. In my own individual opinion they give a better understanding of

the profound originality and enormous intellectual power of the great Chief Justice. These decisions are classics in America and England, and they are quoted with great respect upon the Continent. They might be collected within the compass of a single volume.

The decisions of Judge Story might be treated in the same way, and while Story did not possess the vigor of his great chief, he possessed learning to which Marshall made no claim. Story's authority on international law is as unquestioned in Europe as it is in America.

No outline, however meager, should fail to mention the judgments and opinions of Sir Leoline Jenkins; the "History of the Law of Nations," by Ward; the luminous and authoritative judgments of our own Kent; and the admirable "Institutes of International Law" by Wildman, which some competent critics consider to be the best English work on the Law of Nations. Nor should the treatises of two German authors be overlooked in this brief enumeration: the "Précis du Droit des Gens Moderne" by G. F. de Martens, and “Das Europäische Völkerrecht der Gegenwart" by Heffter. The former work enjoyed great influence in its day and its day is not yet passed; the work of Heffter is considered by continental critics to be the mark and model of a treatise on international law. However opinions may differ as to the respective merits of these books, they are admittedly classics of the science.

Should this project commend itself to you and should the Carnegie Institution be willing to undertake it as a whole in its elaborated form, the student and teacher of international law, and, in a lesser degree, the people at large, would be put in possession of the masterpieces of international law, namely: the works of the predecessors of Grotius, a proper edition of the masterpiece of Grotius himself, the works of the chief successors of Grotius, and adjudged cases of unquestioned authority in the domain of international law.

In the event that the project for the publication of the classics on international law meet with favor, I would suggest that a title be selected which indicates at once the legal and universal nature as well as the scope of the series. The codification of Roman law which we owe to Justinian is ordinarily referred to as Corpus Juris Civilis. The Canon law is termed the Corpus Juris Canonici. The Latin expression for international law is either jus gentium or jus inter gentes. Bearing in mind the terminology applied to the Roman and Canon law, it seems to me that it would be a peculiarly happy turn of expression to name the series Corpus Juris Gentium.

Should the Carnegie Institution, intrusted to your charge, care to undertake the publication of this great work, which I am convinced makes for peace because it makes for international law, thereby substituting, as Mr. Root said in his address at Rio de Janeiro, "the rule of law for the rule of man," I should be very happy to assume the general supervision of the series should you so desire. But I could only do it upon one condition, namely that the services of the editor-in-chief should be gratuitous; for in so doing I would have the satisfaction of discharging in some measure the duty laid upon every professional man by my Lord Bacon, who wisely and properly said:

I hold every man a debtor to his profession; from the which as men of course do seek to receive countenance and profit, so ought they of duty to endeavor themselves by way of amends to be a help and ornament thereunto.

In the hope that the project which I have ventured to lay before you, however briefly or imperfectly outlined, may commend itself to the favorable consideration of the Carnegie Institution,

I am,

Very sincerely yours,

JAMES BROWN SCOTT.

DR. ROBERT S. WOODWARD,

President of the Carnegie Institution of Washington.

APPENDIX B

REPORT OF THE STANDING COMMITTEE ON THE STUDY AND TEACHING OF INTERNATIONAL LAW AND RELATED SUBJECTS

Of the sixteen resolutions and recommendations adopted by the Conference of Teachers of International Law and Related Subjects at the meeting on April 23-25, 1914, nine were referred to the Standing Committee on the Study and Teaching of International Law and Related Subjects. This Committee was appointed under Resolution No. 1, and consists of:

Chairman, Professor George Grafton Wilson of Harvard University

Professor Philip Brown of Princeton University

Professor Amos S. Hershey of Indiana University

Professor Charles Cheney Hyde of Northwestern University

President Harry Pratt Judson of the University of Chicago

Honorable Robert Lansing, Secretary of State

Professor Jesse S. Reeves of the University of Michigan

Mr. Alpheus H. Snow of Washington, D. C.

Secretary ex officio, Mr. James Brown Scott, Recording Secretary of the Society

The resolutions referred to this Committee were Resolutions numbered 3, 4, 6, 7, 10, 12, 13, 14 and 15.

Before considering the special resolutions it may be said that the Committee is agreed in the opinion that no attempt should be made to standardize instruction in international law and kindred subjects. Particularly as compared with other subjects, the qualifications of instructors are unlike and the resources of institutions vary. The aim should be to improve, strengthen and make more general and comprehensive all such work by whatever means this may be possible. In general the broad nature of these subjects of study should be kept in view and the fundamental principles involved should be emphasized.

The Committee is agreed that every possible effort should be made to avoid an impression that there may be a short method for the mastery of the principles of international law or the material of related subjects. For this reason the Committee wishes to emphasize the need of adequate and systematic training conducted in a scientific manner and without partisan or other prejudice.

The special resolutions referred to the Committee may be found stated in full on pages 69-74 of the Report of the Conference of American Teachers of International Law, April 23-25, 1914.

RESOLUTION No. 3.

Resolved, That, in order further to increase the facilities for the study of international law, the Conference recommends that steps be taken to extend the study of that subject by increasing the number of schools at which courses in international law are given, by increasing the number of students in attendance upon the courses, and by diffusing a knowledge of its principles in the community at large, and, more particularly:

(a) That, as the idea of direct government by the people grows, it becomes increasingly essential to the well-being of the world that the leaders of opinion in each community be familiar with the rights and obligations of states, with respect to one another, as recognized in international law. Hence, it has become a patriotic duty, resting upon our educational institutions, to give as thorough and as extensive courses as possible in this subject.

(b) That a course in international law, where possible, should consist of systematic instruction extending over at least a full academic year, divided between international law and diplomacy.

(c) That prominent experts in international law be invited from time to time to lecture upon the subject at the several institutions.

(a) While recognizing the gratifying increase in instruction, an investigation seems to show that there are great differences in the conditions under which instruction in international law and kindred subjects is carried on throughout the United States. Students