the Navy of the United States, and have said among other things that Commodore Perry, a representative naval officer, was the greatest diplomatist in our history. So while we may differ in opinion, and I must still believe there is force in the bull-dog story, yet I am the last to cast any reflection on the army or on the navy. It was not my intention in quoting the Senator to

do so.

The Conference then adjourned until 8 P. M.

Sirth Session.

Friday Evening, June 1st, 1906.

The Conference was called to order at 8 o'clock.

THE CHAIRMAN: One year ago, at a meeting of this Conference, the foundations were laid of what is to be a most important organization; the American Society of International Law. The Society which has since been formally organized, is, therefore, a product of Mohonk. We are now to hear something of the purposes of the Society from its Secretary, HON. JAMES BROWN SCOTT, Solicitor of the State Department.

THE LAW OF NATIONS AND THE AMERICAN SOCIETY OF INTERNATIONAL LAW.

ADDRESS OF HON. JAMES BROWN SCOTT.

Since the publication of Mr. John Austin's work upon the principles of jurisprudence, it has been customary to define law in terms of municipal law, that is to say, to restrict law to those rules and regulations obtaining in a particular country which are adjudicated upon in courts of law and which are enforced or are enforcible by the supreme power of the state. Any other rule or regulation is deprived of the high title of law because it lacks one or more of the essentials of an artificial definition. If states were always the same and if the rules and regulations of states arose in precisely the same way, were passed upon in the same way, and enforced in the same way, it is obvious that the definition of municipal law would be one and the same thing irrespective of time and place. But inasmuch as law is not a rigid system, that it is a thing of slow and painful growth, that it originated in one way in one country, that it grew in other forms in a different country, and that the laws of today are not the same as those of the past, nor indeed are the rules and regulations of the various civilized countries of the present day wholly uniform, it follows necessarily that a definition of law. applicable to a particular country at a particular time is likely to be restricted and narrow. Even if it accurately expresses the concept of law of the particular country it does not necessarily follow that it accurately defines law as understood in different countries. Therefore, if Mr. John Austin's definition of law as a command or rule of conduct prescribed by the supreme power

of the state and enforced by such supreme power accurately describes the system of law obtaining in England at the time of the publication of the principles of jurisprudence, it does not follow that such a conception of law applies equally to times past in England. To illustrate: custom is the very life and breath of law, and the law ordinarily administered in courts of justice throughout the English-speaking world is not the law prescribed by any supreme master, although it may be enforced ultimately by the sovereign authority of the state. If, then, the definition be lacking in one respect it is fair to suspect that it may be lacking in others, and that therefore it is more in consonance with the scientific and historical spirit of the present time to survey the concept and history of law from its faint beginnings until the present time. In this way and only in this way can a definition be found large and broad enough to include not only the law of the present day but that which in times past has been considered the law and observed as such. To revert to the common law. That system grew quietly, silently, in the various parts of England because the people of primitive England possessed a unity of existence, engaged in the same pursuits, and the conscience of the people produced a particular way of looking at the transactions of life and their necessary regulation. The system of one community was thus, generally speaking, the system of a neighboring community and this again was strangely like that of an adjoining one. In this way there was a common law or there was a law common to the various peoples and localities of England. This law obtained its binding force, not because it was superimposed by a sovereign but because it appealed directly to the enlightened conscience of the people and because it was the conscience of the people applied to the business of every day life. If this law were imposed it would be fairer to say that it was imposed upon the sovereign not by the sovereign upon the people. Mr. Austin and the School of Analytical Jurisprudence would meet this objection by stating that when common law had become the law of the land and when this common law was made the measure of rights in a judicial proceeding, the King, through his courts, may be said to prescribe it; if not directly, indirectly, by making it a rule of conduct. In other words the royal recognition is equivalent to a royal command. It is easy to see that this is wide of the mark; and that the Crown merely sanctioned that which existed and which was morally and legally binding upon King and subject alike.

In the next place, Mr. Austin makes the conception of law depend upon the fact that this command is enforced by the sovereign power of the state and that if there be lacking this sovereign power there can be no enforcement of the law. If the law be broken somebody must be charged with inflicting a punishment or penalty, technically called a sanction. That there

fore which lacks a sanction may be morally binding; it cannot be legally binding because this would conflict with Austin's definition of law. To this it may be answered that history again gives the lie to Mr. Austin; for in times past, laws, meaning thereby rules and regulations, did exist; that courts were organized for the purpose of administering the laws and regulations, but that there was no sovereign power to execute the decrees or judgments of such courts. Mr. Austin would say these laws could not be laws. It would be more accurate to say that these laws could not be laws according to his definition; and according to the general understanding of law obtaining in the countries with which he was familiar. But the Icelander obeyed the rule and regulation irrespective of its enforcement by the authority of the state and would no doubt have been astonished to learn that he was yielding to a dictate of morality not to the binding law of the land. Yet such must be the situation if Mr. Austin's definition is correct. The conclusion is inevitable, that while law in its present highly developed state may conform closely to Mr. Austin's understanding and definition of it, still it did not originally conform and that the requirements of Mr. Austin were not in times past regarded as essential ingredients of law.

Mr. Austin's definition of law is faulty in another particular. If it be admitted that the sanction or penalty is necessary to the conception of law, Mr. Austin's definition is clearly narrow and restricted in that it limits this sanction to the physical force of the state, whereas, in reality, the punishment attached to the infraction of the law, whether it be physical in its nature or moral, is nevertheless a sanction and entitled to respect if only the fear of this sanction or its existence without the element of fear prevents people from violating the law in question. If we analyze our own feelings we must be aware that obedience to law is enforced at times not by the threat of physical or corporal punishment-not merely by the certainty that we may be placed behind the bars, and shut off from our kind-but from the feeling amounting to a certainty that the breach of the law in question would expose us to the reprobation of all good men and women. In other words, public opinion on a large or a small scale has in our day and generation as in times past, assumed the form and consistency of a sanction and the fear that this public opinion. may condemn us has no doubt prevented the infraction of many a law and has served as a punishment for its violation. In Mr. John Austin's analysis that only was law which was commanded by the state and enforced by the state, a conception of law generally existing at the present time regarding municipal laws as such, but existing in its highest perfection in the Empire of all the Russias. It must not be denied that Mr. Austin's work was masterly and that he analyzed the essential elements composing his definition with great care, fulness and logical skill. These

qualities rather than the style of the book impressed his contemporaries so that it may be said that English jurisprudence still rests in the shadow of Austin. It is at once obvious that International Law found no place in Mr. Austin's system and the reasons are evident. It was not prescribed by any one sovereign or body of sovereigns; a breach of international law could not be punished by any one sovereign, because where all are equal,— and it is an axiom of international law that all states are equal, there can be no superior. Municipal law was unthinkable without the sheriff. In the case of international law no sheriff is possible. And yet, notwithstanding, international law has become something more than a moral code in the last two centuries and a half, since the appearance of the immortal work of Grotius and the infractions of this code are punished by the greatest sanction or penalty known to man: the scourge of war. Another objection which Mr. Austin would make to international law considered as law is its lack of certainty. That objection is important, and yet the existence of forty-five courts of appeal in the forty-five states of the Union would imply that municipal law is somewhat lacking in the element of certainty. It is, however, a fact that international law is more uncertain than municipal law; it is likewise a fact that international law is becoming more certain and that we are fast approaching the time when international law will exist as a broad, positive, and binding system, albeit such system is not reduced to the form and precise terms of a code. The common law of nations like the common law of England existed without the need of a writing. When the time comes for the codification it cannot be supposed that the difficulty of giving it literary form and consistency will unduly tax mankind. It is curious that Mr. Austin in dealing with international law should have overlooked the fact that repeated adjudications by the most distinguished judges of England had declared international law, at that time. generally called the law of nations, to be an integral part of the common law of England. This oversight or omission was probably due to the fact that Mr. Austin was not sufficiently learned in the nature or history of international law to express an authoritative opinion. The trouble is, however, that his commanding position in the realm of jurisprudence has given oracular value to his utterances and international law has been treated for the past seventy years and more with scant respect by lawvers and jurists alike. If we pass to our own country we find that international law always was and is now considered a part of the law of the land.-both by the Constitution of the United States and by the authoritative determination of the Supreme Court. For this purpose reference may be made to a single case: The Paquete Habana. (1890) i75 U. S., 677. 700, in which Mr. Justice Gray, speaking for the court, declares: