Though the law of nations should be uniform in all countries, a comparison of the leading works in different countries, English and German for instance, will reveal many differences partly traceable to the particular system of law in which the author was grounded, and in part to his peculiar “judicial instinct.” It is not often that one finds an English or American lawyer thoroughly grounded in the Roman system and the modern Continental systems founded upon it; quite as rare is it to find a Continental lawyer learned in the system of English jurisprudence. There have been such men, as, for example, Rudolf Gneist, whose great work on English Constitutional Law and History has become a classic. But, as a rule, there is among text writers on this branch of law and among the eminent jurists who have hitherto been connected with international tribunals much “provincialism in thought and conception,” if the phrase may be allowed, and to overcome it the future jurists who shall take part in international contests before the high tribunal of the nations will require to be more thoroughly grounded in the history and evolution of law in general and in the study of comparative law, both private and public, in particular, than their predecessors have been.[R] In this connection it is not too much to hope that the unifying influence of an international tribunal will eventually exercise a good effect in promoting the solution of various perplexing problems on the private side of international law, or what is known as “conflict of laws.”
[R] As evidence of increased attention to this matter in Germany, see Wertheim, Wörterbuch des Englischen Rechts.
Having indicated some directions in which the growth of international law will be likely to be promoted by the tribunal, the question suggests itself whether the jurisdiction of the international court will eventually be enlarged beyond the scope at present contemplated by the Convention of The Hague. Will the time ever come when such a court shall take cognizance of various matters which now lie without the sphere of “business disputes and questions of a juridical nature” and within that of essential interests, honor, race, and religious policies and ideals? The statement, which is sometimes heard, that such will never be the case, does not seem warranted when we regard the growth of law in general, and indeed the development of this particular branch of it, in the past, but it is safe to say that the time is a long way off; it will depend on many things: the efficiency of the court itself, the continued growth of neutral rights, the increasing necessity for preserving international peace, and the infinite forces which have tended to widen the jurisdiction of municipal law.[S]
[S] See Le Droit de la Paix, by M. Descamps.
In the growth of systems of “National Law”[T] there has been evolved from small beginnings an ever-widening jurisdiction. Impartial courts have inspired confidence which stimulated individuals to seek their aid, and this has reacted to extend their jurisdiction, until now the most intimate and complex relations between individuals, at one time wholly without their sphere, are in these days submitted as a matter of course to judicial settlement. Even questions of individual honor are settled according to the well-developed principles of libel and slander which were once considered as requiring a duel for their satisfaction.
[T] In contradistinction to “International Law.”
A similar growth may be expected in the jurisdiction of the international tribunal. Upon the reputation which it shall succeed in establishing for impartiality, freedom from race and national prejudices, regard for broad principles of law and equity, and the thoroughness and ability with which it shall discharge its high duties within its present sphere, will largely depend the extent to which an advancing public opinion will enlarge its jurisdiction until it shall embrace various classes of questions now declared non-arbitrable. No detailed classification, however, can be thought of; each difficulty as it arises must be determined in view of the surrounding circumstances with due regard to the growing public feeling in favor of judicial settlement. Under the system of voluntary arbitration there is abundant room for growth, for the onus will be thrown on each contending state to square its conduct with that growing feeling in favor of arbitration which it will become more and more difficult to ignore. In every country the growth of law and the extension of the jurisdiction of the courts which administered it have been concurrent; the same rule must govern in the field of international law.
There are vast fields at present untouched by the law of nations. The discovery of the New World threw the jurists of that day into bewilderment as to how rights in the American continents might be acquired and established. A period of doubt and dispute ensued, until finally Grotius, by applying certain rules of Roman law regarding the acquirement of rights by individuals through purchase, possession, etc., and by inventing certain other rules, helped to supply a legal foundation upon which the acquisition of these territories could be regulated. Looking toward the future, one can see that, since there are no more continents to be discovered and the habitable parts of the earth have been already taken possession of by the colonial pioneer, the great principle of the survival of the fittest must henceforth mainly work itself out in competitions confined to the existing territories of the various powers. This will necessitate the consideration of some deep questions concerning the life and death of nations and the heirship to their dominions.[U]
[U] Vide Contuzzi, Leggi di Composizioni e di Decomposizioni degli Stati.
It is widely believed, for instance, that China is dying a natural death. Assuming it to be the fact, what will be the rules to govern the inheritance of these Oriental domains? Great Britain, Russia, Germany, the United States, and other nations have acquired footholds and established interests within Chinese territory. Disputes will inevitably arise between them; many will be settled by mutual compromise in which, perhaps, the chief consideration will be the amount of warlike force behind the arguments advanced; many others will be sure to find their way to an arbitral tribunal, and before that body arguments will be made and by that body decisions will be handed down embracing principles not now to be found in the books, but which the circumstances of the case and the demands of justice require. And so will doubtless ensue a growth of “international judge-made law and equity” which will gradually work an extension of the arbitral jurisdiction into fields at present unknown to the law of nations. One thing is certain: the law so developed must not, on the one hand, be in conflict with the Grotian doctrine of the equality of states as rightly understood, nor, on the other, with that great all-pervading law of the survival of the fittest—a law which determines the destinies of men and nations alike.