A code of private international law has been in operation among the countries of continental Europe for nearly 20 years, notwithstanding their political jealousies and the variances in their systems of legislation. The administration of justice is consequently more closely coordinated between those nations in many respects than between the States of the American Union.

The labors of the international American conferences, beginning with the first meeting at Washington in 1889, endeavored to elaborate such a system for the Western Hemisphere. Unfortunately, our Federal system of government presents constitutional difficulties in the way of the official adoption of many of these projects, but it is to be hoped that the growing commerce between the American nations will result in the elimination of these impediments, perhaps through a wise cooperation between Federal and State legislation. The fourth conference at Buenos Aires in 1910 wisely adopted the line of least resistance in concentrating attention upon the international law of industrial property.

III.

In order that the codification of the laws of peaceful commerce and intercourse should receive the widest possible acceptance among the nations, and not remain the result of the à priori reasoning of a comparatively small group of individuals, it is of the utmost importance that it take root in the practical life of the nations. The various projects should be subjected to analysis and practical criticism not only by jurists and publicists, but also by leaders in commerce and by men of affairs. National societies in the particular branch of commerce affected by each codification should be consulted and even be represented by delegates upon the drafting committees. Mr. Root has well said: "The substantial work of international codification is not merely to state rules, but to secure agreement as to what the rules are, by the nations whose usage must confirm them."

The modus of codification of international maritime law as it has been proceeding for many years may well form a model for other branches. National societies of maritime lawyers, shippers, shipowners, and insurers have appointed delegates to an international maritime committee, which meets at intervals for the adoption of rules in plenary sessions. The results are subsequently submitted for approval or modification to an official diplomatic congress. International treaties relating to collisions, assistance and salvage, and safety at sea have thus been ratified by many of the maritime nations and are now in force. New subjects are continually being placed upon the agenda of the international committee, so that in time we shall doubtless have a maritime code resting upon the solid foundation of common utility.

In conclusion, may we venture to emphasize the importance of being satisfied with modest advances. It is better that a few principles be settled by official sanction than that a compendium should remain forever in the projet stage. Fiore, himself a master of codification, has expressed it as far better to advance step by step, taking advantage of opportune circumstances, in the confident expectation that civilization, progress, and the connexity of commercial relations will gradually embrace in codified forms new matters of commercial international interest. Pas à pas, on va bien loin.

Résumé.

I. Progress toward an international régime of law must henceforth be sought in emphasizing its obligatory character rather than in further extending its detail. The desirability of immediate codification of international law depends

1 Proceedings of Amer. Soc. of Int. Law, 1911, p. 21.

2 Droit int. codifié, 1911, p. 75.

upon whether, in the particular branch, agencies for its enforcement already exist, or whether its interpretation in the last analysis lies only in the sovereign will of the individual nations. Where the latter is the case, as, for instance, in respect of the laws of warfare, codification should be undertaken only hand in hand with the organization of international agencies with authoritative power. The nature of law is generally dependent upon the organic character of institutions. Codification in the field mentioned, in order to be permanently effective, must receive its direction and character from the structure and modus agendi of the agencies intended to enforce it.

II. In those branches of international law which do not concern the rights and duties of nations qua sovereigns, no international agency or forum is essential to its obligatory character. Accordingly, codification may proceed there without danger of political arrières pensées either in elaboration or construction. Codification combines uniformity with certainty and is particularly desirable, therefore, in the regulation of peaceful commerce between nations and in the coordination of the national systems of justice. It promotes the advent of an international basis of civilized society.

III. The modus of codification should be such as to gain for it, when once accomplished, the widest possible acceptance and the greatest possible utility. To this end it should take root in the political life of the various nations. National scientific societies in the particular branch of intercourse should be represented by delegates upon the central drafting committees, and the result of their labors should then be submitted for modification and approval to official diplomatic congresses. The international American conferences have performed much valuable pioneer service in the preparation of projects in various fields of international law. Diplomatic conferences should now be authorized to meet at intervals to recommend for adoption the more matured portions. The rapprochement of the European nations upon private international law has resulted in a cooperation in the administration of justice closer in many respects than that existing between the States of the American Union. The American nations, being free from the sources of political jealousy prevalent in Europe and possessing common ideals of liberty and democracy, must ultimately find in codification a uniform and systematic basis for their international relations.

The CHAIRMAN. Gentlemen of the congress and ladies and gentlemen, some of us have dreamed of an ideal statesman, and we have thought of him, first, as one who serves the public earnestly and devotedly, letting advancement take care of itself, so far as he himself is concerned. We have thought of him as a man of undoubted integrity, of wide experience, of profound scholarship, of a mind tenacious, resourceful, steadfast. We have thought of him as a man capable of leading a great legislative body so that he there established a standard of public service and public duty. We have thought of him as a man who at the head of a cabinet could administer as well as discuss and could there leave a standard never surpassed. We have thought of him as a man who could preside over and direct a great constitutional and constructive convention in a way at least to command the admiration of his country. I am deeply honored and profoundly happy to present here one who conforms in every particular to these dreams of an ideal statesman and public man, our beloved fellow citizen, Hon. Elihu Root.

SHOULD INTERNATIONAL LAW BE CODIFIED? AND IF SO, SHOULD IT BE DONE THROUGH GOVERNMENTAL AGENCIES OR BY PRIVATE SCIENTIFIC SOCIETIES?

By HON. ELIHU ROOT,

President of the American Society of International Law.

Mr. Chairman, ladies, and gentlemen, I shall not at this hour detain you by any extended remarks, and I should apologize for having no prepared address. The subject is one which is very interesting to me and must be very interesting, I think, to every one who thinks about international affairs or who thinks about the possibilities of the future of his country. Should international law be codified? And if so, should it be done through governmental agencies or by private scientific societies? If that means should we undertake to put the law of nations into a single body, which shall be the rule and guide for international relations, I think we must answer, "No; that it is impossible at the present time." Mr. Field made a valiant attempt and Bluntschli a great effort, but the formation of international law, still in its infancy, is a process only just begun, and it has not reached a point where the rules can be embodied in a code. On the other hand, codification, considered not as a result but as a process, seems to be plainly should be attempted and pressed forward and urged with all possible force.

It is curious that codification should be especially necessary in a system of law which is based upon custom more exclusively even than municipal law, but that is necessarily so in the case of the law of nations, because there are no legislatures to make the law, and there are no judicial decisions to establish by precedent what the law is. One great weakness of international law has been that to ascertain what it was you have to go to text writers and to a great variety of statements, differing, inconsistent, many of them obscure and vague, capable of different interpretations, so that the instant the occasion for the application of a law arises there is pressed upon the conflicting or disputing nations the question as to what the law is, without any clear and definite standard from which to ascertain it.

Recent events, or rather the realization of the truth which comes from a great war in Europe, compels us to consider the great shortcomings of what we think of as international law, to consider how narrow the field which it covers, how vague and uncertain it is within that field, and how difficult it is to compel in any way a recognition of its rules of right conduct. There is but one way in which that weakness of international law can be cured, and that is by the process of codification, a process which must extend through long periods, which has been going on very gradually for many years. The declaration of Paris was a little bit of codification. The three rules of the treaty of Washington constituted a little bit of codification as between the United States and Great Britain, and they have been in substance accepted and adopted by the nations of Europe at The Hague. The Geneva convention covered a certain field by codification, and The Hague conventions a much wider field. So I say, considered as a conclusion, there can be no codification; but considered as a process, there must be codification-codification pressed forward and urged on by all possible means.

The very fact that there are no courts to establish precedents and no legislatures to make laws makes this necessary. All international law is made, not by any kind of legislation but by agreement. The agreement is based upon

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.