THE PLACE OF INTERNATIONAL LAW IN JURISPRUDENCE.
AMERICAN •
BY JAMES B. SCOTT. INTERNATIONAL Law—to use Bentham's innovation of 1789, which has found favor with public, instead of the older and more expressive term, Law of Nations —has been variously denounced and praised as international morality or ethics; interna tional courtesy or convention in the social sense of the word; comity as distinguished from rule of law, or merely and finally as the foreign policy which at a par ticular time happens to catch the fancy of nations. If admitted as law in gen eral or as possessing some of the ele ments 'of ordinary municipal law, the prin ciple that pinches is declared not to be law and to have no binding force whatever, be cause there is no Supreme Court of Nations in which the dispute may be litigated and no sheriff exists to execute the decree, sup posing that one had actually been delivered. But the judgment of a municipal court is not self-executing, as for instance, when Presi dent Jackson stamped his foot saying, "John Marshall has made the decision, now let him execute it!" The executive officer of the court, the sheriff or marshal did not enforce it, and that, forsooth, changed the na ture of the transaction! Suppose the sheriff meets resistance in performing the mandate of the court, the armed force of the nation ' may be called upon and in final result the nation is in the field. Now suppose a nation declares that a principle of international law has been violated and the demand for re paration is refused, war ensues, and the Field-Marshal is no less a person than the sheriff. It is submitted that the mere form of the sanction is immaterial, and that the na ture of law cannot well depend upon the whim or ability of a sheriff, or the mere suc cess or failure of an armv in the field. If the
principle is binding at all—that is, if nations admit that a principle binds them, it is of no great moment whether the force is moral, ethical or physical. It does not make much difference in the end to the criminal, nor the rest of mankind whether he has his neck broken or is electrocuted, provided death re sults. It seems, therefore, unscientific, if not positively absurd, to make the essence of a thing depend upon a mere form of punish ment. But the question is after all a quibble of words—a mere wortstreit—as the Germans aptly phrase it; for if modern civilized na tions agree to regard a body of rules and regulations as binding them in their mutual dealings and punish infractions of this code by embargo, reprisals, retorsions, pacific blockades and war, it would seem that the sanction, that is the penalty predicated upon the element of force demanded, is present. The difference of origin and form is merged in the result. For instance, an act of Con gress is the joint product of House of Rep resentatives, Senate and President (suppos ing he approves it, or it becomes a law over his veto or without his action); a treaty is the act of the President and two-thirds of the Senators present. There is indeed a dif ference in the origin and the stages through which law and treaty pass; but the Consti tution ascribes to the treaty the force of law, saying in effect that the treaty so acted upon is law, the law of the land, in precisely the same sense that an act of Congress is law. If, therefore, nations regard a principle as binding as a law which would seem not to be a law without this consent, express or im plied, as evidenced by usage and custom, such principle certainly does have the force
