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？
Some consolation may be found in a position which it is all the more necessary to insist upon because it is not quite in harmony with the assumptions made by some famous writers， presently to be discussed， who are more associated than any others with the origin of International Law. Most of them thought that mankind had started from a condition of innocent peace. It was man's depravity which had interrupted this state and had produced virtually universal and unceasing war. There can be no question that this proposition reverses the truth. It is not peace which was natural and primitive and old， but rather war. War appears to be as old as mankind， but peace is a modern invention. Our intelligence is only just beginning to enable us to penetrate the clouds which rest on the farther verge of history， but what does seem clear to trained observation is the universal belligerency of primitive mankind. Not only is war to be seen everywhere， but it is war more atrocious than we. with our ideas， can easily conceive.
Take one example， the practices concerned with the treatment of the wounded and of prisoners. At first there are signs which cannot be mistaken that the prisoner and the wounded man are not only killed but tortured before being put to death. The still savage races from whom most has been learned as to the original usages and conditions of men are the North American Indians and the aborigines of Australia. That the North American Indians tortured their prisoners before putting them to death is one of a number of facts very familiar to us which have made their way into literature. One branch of this race， the Mexicans， attained to a certain degree of civilization， but it is also matter of familiar knowledge that the Mexicans put their prisoners to death with the greatest cruelty almost in hecatombs， and that the practice with them had acquired a religious sanction. As to the Australians， it has been observed that they have inherited the animal instinct which leads them even to torture their game after it is captured and before it is killed. The English school-boy has often been shocked by the concluding passage in a Roman triumph when the gallant enemy， who had been led in the procession， was not only killed but flogged. When we come to medieval war these cruelties have disappeared， and， though the suffering of the wounded and of prisoners was great， it seems to have been due rather to ignorance and carelessness than to cruelty. It is said that at the battle of Agincourt only one man who had any knowledge of medicine or surgery was present， the functionary who was the predecessor of the official now known as the King's Staff Surgeon.
The only influences which at the beginning of history seem to put an end to war on a large scale are influences which have been much maligned and to which some injustice has been done. The conventionally revised history of the world begins with the formation of certain great empires， the Egyptian， the Assyrian， the Median， and the Persian. No doubt they were a result rather of man's rapacity than of his humanity. The object of their founders was to gratify ambitious display on a great scale and to increase the area from which they could take their taxes； but nevertheless no one could say how much war they extinguished by the Prohibition， which they undoubtedly carried out， of hostilities among the various sub-divisions of their subjects. The latest of these Empires which conferred similar benefits on mankind in the West was the Roman Empire. During the long Roman peace not only did bloodshed practically cease， but the equality of the sexes， the mitigation of slavery， and the organization of Christianity made their appearance in the world. When， however， one of these empires breaks up， the old suffering revives. 'Give peace in our time， O Lord，' is a versicle in the Anglican Liturgy which is said to date from the rupture of the Empire， that is from the time when the Empire was breaking up into kingdoms occupied by barbarian races. It is obviously a prayer for an unusual and unhoped-for blessing. In the East the amount of bloodshed prevented by the Chinese Empire is incalculable. Independently of any other benefits， which the Indian Empire may confer on the collection of countries which it includes， there is no question that were it to be dissolved， or to fall into the hands of masters unable to govern it， the territories which make it up would be deluged with blood from end to end. As the history of modern Europe proceeds there are moments when old controversies seem to have been exhausted and fighting is to a certain extent relaxed， but then some great difference arises between men —— the wars of religion， for example， commence —— and Europe is again full of bloodshed.
There are other facts at first sight of smaller apparent importance which are too little noticed. At all times， amid truculent wars ever reviving， there are signs of a conscious effort to prevent war or to mitigate it. Man has never been so ferocious， or so stupid， as to submit to such an evil as war without some kind of effort to prevent it. It is not always easy to read the tokens of his desire and endeavour to obviate war or to diminish its cruelties； it takes some time to interpret these signs； but when attention is directed to them they are quite unmistakable. The number of ancient institutions which bear the marks of a design to stand in the way of war， and to provide an alternative to it， is exceedingly great. There are numerous old forms of trial discoverable in a great number of countries and in a great number of races in which， among the ceremonial acts of the parties， you can see evidence of a mimic combat. The Roman sacramentum is the best and most familiar instance of this. What we call a judicial proceeding is obviously taking the place of a fight. Another expedient， which is a good deal misunderstood， is the pecuniary fine which was imposed sometimes on the individual author of a homicide， sometimes on his tribe， the Wehr Geld of the Germans， the Eric fine of the ancient Irish. I have seen it represented as evidence of the slight value attached by these races to human life. Here （it is said） is a mere money compensation for killing an enemy. But this is a misapprehension of the amount of the punishment inflicted. If we had learned that a man who tools the life of another was deprived of the whole of his land we should， I suppose， have been of opinion that the punishment was at all events not trivial. But one of the new ideas which we owe to the ancient Irish law， the Brehon law， is an adequate conception which we for the first time gain of the importance to mankind of moveable property. Capitale， cattle， capital， a long descended term， was the imperatively required implement for the cultivation of land， at a time when land was plentiful and perhaps common and undivided. The necessity imposed on the family or tribe of a man who had taken a life of paying a portion of this jealously guarded subject of ownership to another of the ancient groups was not a slight but an excee
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？
Some consolation may be found in a position which it is all the more necessary to insist upon because it is not quite in harmony with the assumptions made by some famous writers， presently to be discussed， who are more associated than any others with the origin of International Law. Most of them thought that mankind had started from a condition of innocent peace. It was man's depravity which had interrupted this state and had produced virtually universal and unceasing war. There can be no question that this proposition reverses the truth. It is not peace which was natural and primitive and old， but rather war. War appears to be as old as mankind， but peace is a modern invention. Our intelligence is only just beginning to enable us to penetrate the clouds which rest on the farther verge of history， but what does seem clear to trained observation is the universal belligerency of primitive mankind. Not only is war to be seen everywhere， but it is war more atrocious than we. with our ideas， can easily conceive.
Take one example， the practices concerned with the treatment of the wounded and of prisoners. At first there are signs which cannot be mistaken that the prisoner and the wounded man are not only killed but tortured before being put to death. The still savage races from whom most has been learned as to the original usages and conditions of men are the North American Indians and the aborigines of Australia. That the North American Indians tortured their prisoners before putting them to death is one of a number of facts very familiar to us which have made their way into literature. One branch of this race， the Mexicans， attained to a certain degree of civilization， but it is also matter of familiar knowledge that the Mexicans put their prisoners to death with the greatest cruelty almost in hecatombs， and that the practice with them had acquired a religious sanction. As to the Australians， it has been observed that they have inherited the animal instinct which leads them even to torture their game after it is captured and before it is killed. The English school-boy has often been shocked by the concluding passage in a Roman triumph when the gallant enemy， who had been led in the procession， was not only killed but flogged. When we come to medieval war these cruelties have disappeared， and， though the suffering of the wounded and of prisoners was great， it seems to have been due rather to ignorance and carelessness than to cruelty. It is said that at the battle of Agincourt only one man who had any knowledge of medicine or surgery was present， the functionary who was the predecessor of the official now known as the King's Staff Surgeon.
The only influences which at the beginning of history seem to put an end to war on a large scale are influences which have been much maligned and to which some injustice has been done. The conventionally revised history of the world begins with the formation of certain great empires， the Egyptian， the Assyrian， the Median， and the Persian. No doubt they were a result rather of man's rapacity than of his humanity. The object of their founders was to gratify ambitious display on a great scale and to increase the area from which they could take their taxes； but nevertheless no one could say how much war they extinguished by the Prohibition， which they undoubtedly carried out， of hostilities among the various sub-divisions of their subjects. The latest of these Empires which conferred similar benefits on mankind in the West was the Roman Empire. During the long Roman peace not only did bloodshed practically cease， but the equality of the sexes， the mitigation of slavery， and the organization of Christianity made their appearance in the world. When， however， one of these empires breaks up， the old suffering revives. 'Give peace in our time， O Lord，' is a versicle in the Anglican Liturgy which is said to date from the rupture of the Empire， that is from the time when the Empire was breaking up into kingdoms occupied by barbarian races. It is obviously a prayer for an unusual and unhoped-for blessing. In the East the amount of bloodshed prevented by the Chinese Empire is incalculable. Independently of any other benefits， which the Indian Empire may confer on the collection of countries which it includes， there is no question that were it to be dissolved， or to fall into the hands of masters unable to govern it， the territories which make it up would be deluged with blood from end to end. As the history of modern Europe proceeds there are moments when old controversies seem to have been exhausted and fighting is to a certain extent relaxed， but then some great difference arises between men —— the wars of religion， for example， commence —— and Europe is again full of bloodshed.
There are other facts at first sight of smaller apparent importance which are too little noticed. At all times， amid truculent wars ever reviving， there are signs of a conscious effort to prevent war or to mitigate it. Man has never been so ferocious， or so stupid， as to submit to such an evil as war without some kind of effort to prevent it. It is not always easy to read the tokens of his desire and endeavour to obviate war or to diminish its cruelties； it takes some time to interpret these signs； but when attention is directed to them they are quite unmistakable. The number of ancient institutions which bear the marks of a design to stand in the way of war， and to provide an alternative to it， is exceedingly great. There are numerous old forms of trial discoverable in a great number of countries and in a great number of races in which， among the ceremonial acts of the parties， you can see evidence of a mimic combat. The Roman sacramentum is the best and most familiar instance of this. What we call a judicial proceeding is obviously taking the place of a fight. Another expedient， which is a good deal misunderstood， is the pecuniary fine which was imposed sometimes on the individual author of a homicide， sometimes on his tribe， the Wehr Geld of the Germans， the Eric fine of the ancient Irish. I have seen it represented as evidence of the slight value attached by these races to human life. Here （it is said） is a mere money compensation for killing an enemy. But this is a misapprehension of the amount of the punishment inflicted. If we had learned that a man who tools the life of another was deprived of the whole of his land we should， I suppose， have been of opinion that the punishment was at all events not trivial. But one of the new ideas which we owe to the ancient Irish law， the Brehon law， is an adequate conception which we for the first time gain of the importance to mankind of moveable property. Capitale， cattle， capital， a long descended term， was the imperatively required implement for the cultivation of land， at a time when land was plentiful and perhaps common and undivided. The necessity imposed on the family or tribe of a man who had taken a life of paying a portion of this jealously guarded subject of ownership to another of the ancient groups was not a slight but an excee