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action in that state for damages resulting from the death of one of its employees by the wrongful act, neglect, or default of any party or authority whatsoever. It is difficult to understand how a board or corporation, which is thus incapacitated in its own domicile, can acquire a right to maintain a claim for such damages before its own federal government.
If it possesses such right it must be found, as in this case, against China, in the rules or practice of international law. I have already stated that I have found no instance where the government of the United States has ever presented to a foreign government the claim of an American board or corporation for its own benefit based upon the wrongful death of one of its employees. Fortunately for the solution of this question, an occasion has arisen requiring its determination by an international body of no insignificant authority.
As is well known, the Boxer uprising in China of 1900 resulted in the murder of quite a number of missionaries. Several of these were employees of the board whose claim we are now examining. It would seem to be an occasion, if ever, when the church boards would be justified in setting up their own corporate claim for damages. The Chinese government had been so far in complicity with the perpetrators of those bloody deeds, that the foreign governments felt it necessary to send their armies to seize the capital and inflict exemplary punishment for the wrongs and injuries suffered by their citizens and subjects. The diplomatic representatives of eleven nations, including the United States, after determining the total amount of the indemnities to be required of China, drew up a statement of the rules which should govern the distribution of those indemnities. Under those rules societies and companies were allowed to make claims for damages, for property losses, for buildings, and the like, damaged or destroyed; but indemnities for wounds, cruel treatment, or death, were confined to private individuals, to widows and orphans.
The demands of the foreign governments went to the extreme limit of indemnity in the Boxer outbreak, and in that instance societies or incorporated bodies were excluded from indemnities for injuries to persons or for lives lost. It is not alleged that the board in question ever presented to the Department of State a claim for the loss of its employees in that outbreak or protested against the rules of the diplomatic body.
* Appendix to For. Rel., 1901, Mr. Rockhill's Report, 106.
It is stated that the action of the board, setting forth its position, as above quoted, was submitted to the leading Protestant mission boards domiciled in New York, and that they unanimously concurred in its position. Whether such action was wise or Christlike is not a legal question, and I abstain from expressing an opinion upon it.
JOHN W. FOSTER.
INTERNATIONAL LAW: ITS PRESENT AND FUTURE
In entering upon the publication of a new journal, professedly designed not only to advance the knowledge of, but also to improve, the principles of international law, it is not inappropriate to make an estimate of the present state of the system and to consider its future needs.
There are two modes in which international law may be developed. The first is the general and gradual transformation of international opinion and practice; the second is the specific adoption of a rule of action by an act in its nature legislative. The operation of the former mode is often difficult to follow in its details, but its effects are potent and undeniable. Perhaps its clearest and most precise application may be found in the opinion of the Supreme Court of the United States in the case of the Spanish fishing-smacks, the Paquete Habana and the Lola,' which were seized by American cruisers during the war between the United States and Spain, with a view to their confiscation as enemy's property. The Supreme Court, however, held that they were not subject to condemnation, on the ground that coast fishing vessels, unarmed and honestly pursuing the peaceful calling of catching and bringing in fresh fish, were exempt from capture as prize of war. In reaching this conclusion, the court considered the question whether the exemption was merely a matter of "comity," or whether it was a matter of legal right to which the court was bound to give effect. In behalf of those who sought the condemnation of the vessels, authority dating back nearly a hundred years, was cited, to the effect that the exemption was only a matter of "comity;" but the court, pointing to later practice, declared that the period of a hundred years was "amply sufficient to have enabled what originally may have rested in custom or comity, courtesy or concession, to grow, by the general assent of civilized nations, into a settled rule of international law.” And the court quoted a statement of Sir James Mackintosh to the effect that as mitigations of the rules of war "received the sanction of time,” they were “raised from the rank of mere usage” and became "part of the law of nations."
* The Paquete Habana, 175 U. S. 677.
It would not be difficult to cite other illustrations of the recent development of international rules of conduct by the gradual transformation of opinion and practice. But the past century has been specially distinguished by the modification and improvement of international law by what may be called acts of international legislation. By the congress of Vienna, in 1815, rules were adopted, the effect of which has been worldwide, with regard to the navigation of international rivers. By the same congress and the congress of Aix-la-Chapelle, the grades of diplomatic representation were established. Yet more remarkable as an act of legislative aspect was the declaration on maritime law made by the congress of Paris of 1856. Three out of the four rules embraced in the declaration are now universally acknowledged as rules of international, either by virtue of adhesion to the declaration or by independent recognition and acceptance. Of the congress at the Hague, in 1899, it is unnecessary to speak. It forms an epoch in the history of the law of nations.
What has been said as to the development of international law, denotes the progress at the same time the defects of the system. Its progress has been great; but, viewed as a body of law, its chief defect is the want of some form of international organization by which a common interpretation and common enforcement of its mandates may be secured. To a certain extent its rules are at present administered by the courts of each country, but the efficacy of this judicial administration is qualified by two facts: first, that much of what we call international law is of political rather than judicial cognizance and cannot be dealt with by the courts; and secondly, that, if the court of a particular country departs from the general opinion, there is no remedy but a diplomatic claim, enforceable in the last analysis by war.
Here, then, lies the work of the future, in the attainment of some method, by some form of organization, for the common interpretation and enforcement of international law, not indeed without the use or provision for the use of force, but without creating the legal condition of things called a state of war.
JOHN BASSETT MOORE.
DOCTOR FRANCIS LIEBER'S INSTRUCTIONS FOR THE
GOVERNMENT OF ARMIES IN THE FIELD
International law owes much to American judges and to American jurists. The list of those who have contributed to its advancement is not short and includes the names of Marshall, Story and Field, Kent, Wheaton, with his able commentators, Dana and Lawrence, Halleck and Lieber and, among recent writers, Taylor, Moore and Snow. Although his name is not connected with a general treatise on the subject of public international law, it may be doubted whether any of his fellow-workers in that field have rendered a more important service to humanity and to international good neighborhood, than has Dr. Francis Lieber in his memorable "Instructions for the Government of the Armies of the United States in the Field.”
The facts of his life and public career are too well known to require presentation. His patriotic service in the Colberg Regiment under Blücher during the campaign which completed the overthrow of the Emperor Napoleon, his serious wounding at Namur in the pursuit of the remnant of the imperial armies in their flight from Waterloo, his early identification with the cause of German liberalism, his brief service in the war for Greek independence, were all included between the years 1815 and 1826, when he found asylum in England as a political refugee. After a brief residence in London, Dr. Lieber crossed to the United States and established himself in Boston and subsequently in Columbia, South Carolina, where, in the congenial field of activity which was afforded him in a professorship in the University of South Carolina, the greater portion of his useful life was passed.
His devotion to the Union cause led to the resignation of his professorship, but placed at the service of President Lincoln a trained
1 The full text of the Instructions will be found in vol. ii of Lieber's Miscellaneous Writings-Lippincott, Philadelphia, 1881; and in General Orders No. 100, Adjutant General's Office of 1863.