International Law

A series of Lectures were delivered before the University of Cambridge.

Sir Henry Maine (1822 - February 3, 1888) was a British jurist and legal historian. He was born in Kelso, Roxburgh, Scotland on August 15, 1822. Maine is best known for his work in comparative law.

Contents:

* Introduction
* Lecture I : Its Origin and Sources
* Lecture II : Its Authority and Sanction
* Lecture III : State Sovereignty
* Lecture IV : Territorial Rights of Sovereignty
* Lecture V : Naval or Maritime Belligerency
* Lecture VI : The Declaration of Paris
* Lecture VII : The Mitigation of War
* Lecture VIII : The Modern Laws of War
* Lecture IX : Rules as to Prisoners and Quarter
* Lecture X : Mentions of Belligerents on Land
* Lecture XI : Rights of Capture by Land
* Lecture XII : Proposals to Abate War

Excerpt:

LECTURE I.
ITS ORIGIN AND SOURCES.

The eminent man who founded the Whewell Professorship of International Law laid an earnest and express injunction on the occupant of this chair that he should make it his aim, in all parts of his treatment of the subject, to lay down such rules and suggest such measures as might tend to diminish the evils of war and finally to extinguish war among nations.

These words of Dr. Whewell, which occur in his vill and in the statute regulating his professorship, undoubtedly contain both a condemnation and a direction. International Law in its earlier stages was developed by a method of treatment which has been applied to many important subjects of thought when their growth has reached the point at which they are included in books to theology, to morals, and even, in some cases, to positive private law. Writers of authority who have gained the ear of the learned and professional classes follow one another in a string, each commenting on his predecessor, and correcting, adding to, or devising new applications for, the propositions he has laid down.

For a considerable time International Law, as the words are commonly understood, had to be exclusively collected from the dicta of these authoritative writers, who, however, differed from one another materially in their qualities and defects. At the head and at the foot of the list two names are often conventionally placed, first that of Grotius, who was born in 1583, and died in 1645, and last that of Vattel, who was born in 1714 and died in 1767. Of both these writers it may be confidently asserted that the rules and propositions which they laid down did tend to diminish the evils of war and may possibly help to extinguish some day war among nations. But of the residue of this class of publicists, it must be confessed that some were superficial, some learned and pedantic, some were wanting in clearness of thought and expression, some were little sensitive to the modifications of moral judgment produced by growing humanity, and some were simply reactionary. As these lectures proceed I may be able to point out to which class, and for what reasons, the writer immediately before us belongs.

Meantime I may be allowed to pause and say that at first sight it seems hopeless to discharge in our day the responsibility which Dr. Whewell has laid on his professor. What teacher of Law, public or Private, considering what we see around us, can hope to suggest the means of controlling, and still less of weakening and destroying, the prodigious forces which seem now to make for war? The facts and the figures alike appear to point to an enormous growth of these forces in volume and strength. The middle year of this century was the thirty-fifth of the long peace which began in 1815 -- a peace which was not quite unbroken, for there were some intervals of petty local war, but which was as long as any which existed since Modern Europe began, and a peace which was fruitful in every sort of remarkable result. That generation may be said to have had a dream of peace. It looked forward to a time when, in the words of the great poet who was then beginning to exercise influence over it, 'The war drum should beat no longer and the battle flag should be furled.' And in 1851 an event occurred which has since then been somewhat vulgarized by repetition, the establishment of the first of the Exhibitions of Art and Industry. It seriously added to the belief that wars had ceased; strife in arms was to be superseded by competition in the peaceful arts, controversy was to be conducted by literary agencies and no longer by arms. As a poet and prose-writer then still living put it, 'Captain Pen had vanquished Captain Sword.'

But the buildings of this Temple of Peace had hardly been removed when war broke out again, more terrible than ever. First came the Crimean War in which this country was a principal belligerent; then followed the frightful struggle of the Indian Mutiny in which England was solely concerned. Shortly afterwards the Government of the new French Empire attacked the Governments established in Italy by the Treaty of Vienna, and soon the whole of the Italian arrangements set up by that Treaty were destroyed. Before long, the United States of America, supposed to be preserved from war by a sort of homely common sense, were torn asunder by the war of secession, which, proportionately to its continuance, was the costliest and bloodiest of wars. In no long time the German arrangements which were established at Vienna fell in pieces through a quarrel between the chief German powers, Almost the other day there came the French and German war and the struggle between the Russians and the Turks -- contests which unveiled the bases of quarrels of which we have not seen the end: namely, the historical rivalry between the French and Germans, and the most hopeless of all the problems which the civilised world has to solve, the contest provoked by the inevitable break-up of the Turkish Empire.

The immediate causes of these wars can of course be traced; but to believers in the permanent return of peace they were a bitter deception. Even more alarming than the return of war was the intrusion of war into peace. After the defeat of Jena, the limitation of their army which the Emperor Napoleon forced upon the Prussians produced a system of which the effect was to teach the Western world a new method of military organization. The whole population of a country was passed through the ranks of armies. As in the most ancient days, the young men primarily fought, after them came the next above them in age, after these their elders; all of them knew, and now know, the use of arms, and nobody escapes the necessity for fighting in particular contingencies, except either the very old or the very young. The figures are exceedingly astonishing. When Russia was rising to the height of military reputation which she gained in 1812 and 1813, she had always a difficulty in bringing as many as 100,000 men into the field; now she is said to contain six millions of armed men. The most energetic effort which was ever made by France to arm her population was in 1813, after the retreat from Moscow and before Napoleon's surprising campaigns within the limits of France herself were commenced. The number of men which Napoleon with all his lieutenants led to combat from France, Italy, and the Confederation of the Rhine (to which were added the disengaged garrisons of French soldiers) was almost exactly equal to the number of men which France at this moment regards as that of her army when on a strictly peace footing.

'War,' says Grotius, in a remarkable passage in which he shows his dissent from the opinions of the preceding age, 'war is not an art.' Nowadays not only is it an art requiring a long apprenticeship and equipped with a multitude of precise rules, but besides this it is the mother of new arts. The whole science and art of explosives, which has occupied the inventive genius of civilised lands for about twenty years, is of warlike origin; and an apparently most peaceful art, hydraulic engineering, is said to owe its remarkable modern development to the study of the means of lifting and working great naval guns. Guns of long range were first tried in the field during the Crimean war, when they were on the whole pronounced to be a costly failure. But we have some very remarkable evidence at this moment of what they have come to, supplied partly by a Committee of the House of Commons appointed to consider the army estimates, and partly by the report of a Royal Commission appointed to investigate the subject of naval patterns, or in other words, the mode in which new inventions are dealt with by the civil and military officers of our government.

The Director-General of Artillery stated to the Parliamentary Committee that the increase in army estimates which was due to the advance of military science, began in 1882-83, when breech-loading guns were finally adopted. The cost of the steel gun was a third more than that of the old wrought-iron tube, but this cost increased till in the case of the 100-ton gun it exceeded 19,000 l., while the cost of the projectile, which once was rather over 7 l., now reaches at least 150 l. All the treasure and all the labour and all the skill expended nowadays on ships and fortifications appear to end in this. Each of the most modern guns is likely to cost 20,000 l. It fires a charge of powder and shot weighing about a ton and a quarter. Each charge costs 150 l. It thus happens that one of the large guns used in the ships in which the great naval victories of England were won at the end of the last century and the beginning of the present did not cost much more than a few charges of powder and shot fired off in a gun of the present day. Nor is this all the story. After a gun of the present day has fired 150 shots it is so damaged by the labour and strain it has undergone that it must be repaired. This short effective existence is the result of the extreme delicacy with which it has been endowed by modern art. I repeat, then, my question when the forces at work are so enormous, how shall they be controlled, diminished, or reduced by a mere literary agency?

1887