customs, but the ascertainment and recognition of the customs is the subject of the agreement, and how can agreement be possible unless the subject matter of the agreement is definite and certain?

I say that recent events indicate that we must press foward codification. I can go a step further than that. The changes in the conditions of the earth, the changes in international relations which have been so rapid in recent years, have outstripped the growth of international law. I think it quite right to say that the law of nations does not come so near to covering the field of national conduct to-day as it did 50 years ago. The development of international relations in all their variety, in the multitude of questions that arise, goes on more rapidly than the development of international law; and if you wait for customs without any effort to translate the custom into definite statements from year to year, you will never get any law settled except by bitter controversy. The pressing forward of the codification of international law is made necessary by the swift moving of events among nations. We can not wait for custom to lag behind the action to which the law should be applied.

Mr. Chairman, I want to express entire harmony with what Gov. Baldwin said a few moments ago upon the other branch of this question, as to whether codification should be by governmental agencies or by private societies. It is not practicable that governments should do the threshing out of questions necessary to reach a definite statement of a conclusion. That has to be done with freedom from constraint by the private individual doing his work in a learned society or in private intercourse. I think it is not generally understood that the first conference at The Hague would have been a complete failure if it had not been for the accomplished work of the Institut de Droit International. The first conference was called by the Czar of Russia to consider and agree upon disarmament. It was called with expressions of the most noble character, which, if they could have impressed themselves upon the minds and hearts of Europe, would have rendered impossible the terrible sacrifices that are now going on. The conference was called for the purpose of agreeing upon disarmament, and for the purpose of averting what the Czar saw coming in the future and which has now come. But there were Powers in Europe which would not have it. They refused to enter a conference for the purpose of considering that subject. Something had to be done. Here was a conference called by this great Power about to meet, and something had to be done, so they took the accomplished work of the Institut de Droit International, which had been threshed out through the labors and discussions of the most learned international lawyers of Europe, including most of the technical advisers of the foreign offices of Europe meeting in their private capacity, and embodied it in the conventions of the First Hague Conference. It would have been impossible for the Hague Conference to do that work or one tithe of it if they had not had the material already provided.

So I think it is quite clear that the process of codification, step by step, subject by subject, point by point, must begin with the intellectual labor of private individuals, and it must be completed by the acceptance of governments. All of the hundreds of thousands of pages that have been written upon international law by the private individuals go for nothing unless Governments accept them. A wilderness of text-writers one has to wander through in endeavoring to get at what the law of nations is, and all that they wrote is of no consequence, except as it exercises a force in bringing about action and agreement by the Governments of the earth. So, Mr. Chairman, this process must have both private initiative and governmental sanction.

Mr. Chairman, there is one other subject which I think we should consider in dealing with the subject of codification, and that is this: Are the small nations of the earth to continue? Is it to be any longer possible for the little people to maintain their independence? That is a serious question with many of us in this joint meeting of the society and subsection 6 of the Pan American Congress and the American Institute. The large nations can take care of themselves by the exercise of power, if they are willing to be armed to the teeth always; but the small countries-what are they to do? There is no protection for them but the protection of law! And there is no protection in law unless the law be made clear and definite and certain, so that a great bully can not escape it without running into the condemnation of that law. So I say that every dictate of humanity should lead us to urge forward that process by which in its better moments mankind may be led to agree to the setting up of clear and definite and distinct rules of right conduct for the control of the great nations in their dealings with the small and weak.

The presence here of Dr. Maurtua, whom it is a great pleasure for me to hail as a colleague in the Faculty of Political and Administrative Science of the University of San Marcos, at Lima, and of the distinguished Ambassador from Brazil, my old friend from Rio de Janeiro, leads me to say something which follows naturally from my reflections regarding the interests of the smaller nations. It is now nearly 10 years ago when your people, gentlemen, and the other peoples of South America, were good enough to give serious and respectful consideration to a message that it was my fortune to take from this great and powerful Republic of North America to the other American Nations. I wish to say to you, gentlemen, and to all my Latin American friends here in this congress that everything that I said in behalf of the Government of the United States at Rio de Janeiro in 1906 is as true now as it was true then. There has been no departure from the standard of feeling and of policy which was declared then in behalf of the American people. On the contrary, there is throughout the people of this country a fuller realization of the duty and the morality and the high policy of that standard.

Of course, in every country there are individuals who depart from the general opinion and general conviction both in their views and in their conduct; but the great, the overwhelming body of the American people love liberty, not in the restricted sense of desiring it for themselves alone, but in the broader sense of desiring it for all mankind. The great body of the people of these United States love justice, not merely as they demand it for themselves, but in being willing to render it to others. We believe in the independence and the dignity of nations, and while we are great, we estimate our greatness as one of the least of our possessions, and we hold the smallest State, be it upon an island of the Caribbean or anywhere in Central or South America, as our equal in dignity, in the right to respect and in the right to treatment of an equal. We believe that nobility of spirit, that high ideals, that capacity for sacrifice are nobler than material wealth. We know that these can be found in the little State as well as in the big one. In our respect for you who are small, and for you who are great, there can be no element of condescension or patronage, for that would do violence to our own conception of the dignity of independent sovereignty. We desire no benefits which are not the benefits rendered by honorable equals to each other. We seek no control that we are unwilling to concede to others, and so long as the spirit of American freedom shall continue, it will range us side by side with you, great and small, in the maintenance of the rights of nations, the rights which exist as against us and as against all the rest of the world.

With that spirit we hail your presence here to cooperate with those of us who are interested in international law; we hail the formation of the new American Institute of International Law and the personal friendships that are being formed day by day between the men of the North and the men of the South, all to the end that we may unite in such clear and definite declaration of the principles of right conduct among nations, and in such steadfast and honorable support of those principles as shall command the respect of mankind and insure their enforcement.

The CHAIRMAN. The Chair takes great pleasure in presenting Dr. Victor Maurtua, of the University of San Marcos, at Lima, Peru, who will speak to us along the line of what has already been discussed respecting the unification of international law in America.

LA UNIFICACIÓN DEL DERECHO INTERNACIONAL EN EL CONTINENTE AMERICANO.

Por VÍCTOR MAURTUA,

Profesor de la Universidad de San Marcos, Perú.

Como profesor de la Universidad de Lima, no he querido que la importante subsección de Derecho Internacional de esta Sección VI clausurase sus sesiones sin haber tenido la oportunidad de expresar la opinión de aquel centro docente en materia de tanta trascendencia.

Voy a hacer una exposición muy breve, indicando las tres ideas que presenta a este Congreso la Delegación del Perú. La primera se refiere a los deberes que impone el derecho internacional a los países de este Continente como consecuencia del actual conflicto europeo. Nos parece que este Congreso Científico està en la obligación de revisar los principios mentales y morales en que se funda el derecho internacional, ampliándolos de tal manera que aseguren la paz y existencia harmónica de todo el universo.

En mi concepto, en el concepto de los pensadores, el concepto del derecho se ha derivado de la necesidad de asegurar la mayor suma de bienestar por todos los medios posibles que la ciencia tenga a su alcance.

Los tratadistas de derecho internacional tanto de América como de Europa se han limitado a establecer reglas más o menos empíricas, más o menos abstractas, pero no han introducido en el derecho internacional elementos prácticos, no han basado sus principios en ninguna construcción elevada, y tanto este Congreso Científico como los congresos o conferencias científicas que en lo sucesivo se celebren deben procurar revisarlos. Debe también generalizarse el conocimiento de la materia de modo que sea accesible no sólo a los elementos directores sino al pueblo mismo.

Mr. Root dijo precisamente en la Universidad de Lima, que en América no sería respetada una institución sino cuando se funda en sentimientos de justicia, cuando prevalece en el pueblo la convicción de su conveniencia y necesidad. Debe pues generalizarse la enseñanza del derecho internacional comenzando su instrucción desde las escuelas primarias hasta las universidades.

Las enseñanzas de la guerra europea para este Congreso Científico y para los pensadores de América consisten sobre todo en la necesidad de inculcar al pueblo en general el respeto al derecho, de modo que tenga perfecto conocimiento de ello.

Debe procurarse también que el derecho político de las repúblicas sudamericanas, que no se diferencia sustancialmente del derecho político de los Estados Unidos, porque todos se fundan en la forma republicana, sea objeto de estudio conjunto, pues mientras en algunos países se practica el voto directo, en otros prevalece el sistema del sufragio indirecto; mientras en unos hay una división más marcada de poderes, en otros esta división es menos aparente, debiéndose procurar que la revisión de esta importante rama del derecho dé por resultado el que resida en el pueblo la facultad de hacer guerra o concertar la paz.

Así quedará realizado el supremo ideal no solamente de harmonización de los intereses económicos, y de los principios igualitarios, sino que la paz continental quedará asegurada.

The CHAIRMAN. Ladies and gentlemen, this concludes the program for the afternoon, and the meeting will stand adjourned. Thereupon the session adjourned at 3.45 o'clock.

68436-17-VOL VII- -20

SESSION OF SUBSECTION 2 OF SECTION VI.

SHOREHAM HOTEL,

Friday afternoon, December 31, 1915.

Chairman, SIMEON E. BALDWIN.

The session was called to order at 2 o'clock by the chairman of the section, Dr. James Brown Scott, who introduced the chairman of the subsection, Judge Simeon E. Baldwin.

INAUGURAL ADDRESS.

By SIMEON E. BALDWIN,

Professor of Law, Yale University.

The section in which we are included is to deal partly with international and partly with municipal law. To us has been assigned something that, in a sense, lies deeper than either. On the public law of the world is built up its international law and its whole jurisprudence.

Why are the rules of private law binding upon individual men? Because they conform to the rightful will of the sovereign, to whom recourse must be had to secure their enforcement.

But whence comes to him this right of willing and enforcing? It is a necessary part of his sovereignty, and the definition and nature of sovereignty is to be found in public law.

Sovereignty is not without its limits. Public law prescribes them. Its fundamental principle in this respect has come to be that government is insti tuted for the ultimate benefit of the people who are subject to it. Public office, even when held by kings and emperors, is a public trust. A trustee is accountable to those for whose benefit he holds his position. He must not assume to create unwarranted relations between them and him or between them to each other.

To ascertain what relations are warranted, we must dig deep. We must proceed with caution, lest we destroy the sources of vitality. We must define before we explore.

TOPIC NO. 1.

Hence there has has been propounded as the first topic which we are to consider, that on which all the others must depend, "The Preferable Definition of Public Law." If this Congress can here add in any measure to that precision of expression which ought to characterize the description of every great body of rules for human conduct, it will accomplish a substantial advance in legal philosophy.

We can not be unmindful of the difficulties of the task. Omnis definitio periculosa est.