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with unauthorized expeditions, and with the responsibility of the state for them.

The international law, in creating an obligation to prevent hostile attacks on other states, establishes a presumption of responsibility for those attacks that are not prevented.80 The sovereign state is considered to be able to control the use of its territory; it is presumed to have the power to prevent hostile expeditions. Its failure to prevent is, therefore, regarded as a refusal to exercise that power; and for this the state is responsible. But this is a presumption which may be overcome. The control of private conduct is not as absolute in fact as in theory. The state may have ample power, and have diligently sought to exercise it, and yet may fail to accomplish the object enjoined by the law. Its responsibility may, consequently, be rebutted if the difficulties in the way of the prevention of an expedition were so great as to make it impossible, or to require a greater exertion than was warranted. There is then no delinquency and no liability.81

The responsibility which a state does incur through failure to prevent expeditions under other conditions is a direct responsibility. That is to say, in case of a failure through some fault of its own, it has incurred not merely a vicarious responsibility for the acts of the individuals involved, but is itself guilty of an international delinquency. This follows from the fact of the definite duty of prevention. This duty would mean nothing if it might be performed by such subsequent action as is otherwise demanded in satisfaction for individual misconduct. If the responsibility were purely vicarious, the practice with regard to hostile expeditions would be confined entirely to the punishment of offenders and to securing reparation by them, or at most to voluntary prevention. The obligation, not being directly enforceable, would give no right of action against the negligent state. A failure would then not amount to a delinquency, and there could be said to be no legal duty of prevention. It is true, the state may prefer to meet its responsibility in the matter by redress to the offended state. But the responsibility it assumes is for its own delinquency, and must be met in addition to any vicarious responsibility it may otherwise normally have.82

80 Charge to Grand Jury, Fed. Cas. 18266.

81 Infra, Chap. IV, sec. 2.

82 Charge to Grand Jury, Fed. Cas. 18266. See also the cases submitted to arbi

The direct liability of the government concerns only the conduct of expeditions while within its own jurisdiction. Whether or not it has been guilty of delinquency in the prevention of an undertaking, it is not considered an offender at international law by reason of the subsequent conduct of the individuals involved. The state is, however, under a relative responsibility for their actions which injure another country. Though it is not itself compelled to make reparation, nor secure satisfaction to the wronged state, it is required to deal with the offending parties as circumstances will permit to compel them to redress the wrong done or pay the penalties of the law. Because the injury done is usually not such as may be repaired by the individual offenders, the infliction of criminal penalties is all that is demanded.83

The state itself becomes directly responsible again if it refuses or neglects for any reason to meet the just requirements of its vicarious responsibility. The nation then becomes a party to the wrong, and direct reparation may be demanded of it in lieu of the private persons.

84

Expressed thus negatively, the wrong committed by the state is a failure to meet a certain international requirement. That, we have considered the real offense at international law, and have excluded private offenses. But when viewed positively, the wrongful act of the state appears to consist in complicity in hostile attacks on friendly states. The authorized and direct complicity of the government in the expedition itself has been excluded as actual war. The negligence and carelessness of the state, however, in the prevention of such enterprises amounts to virtual complicity in the undertaking. If there is such an attitude on the part of the government as indicates a disregard of its international obligation, it may be considered as having consented to the attack which is to be made; it may even be regarded as assisting in the hostilities by protecting the persons engaged, and allowing them its territory as a base for organization. If the sovereign has knowingly suffered the harm to be done to another state, it may be said to be an accomplice in the act itself.

tration, referred to in Chap. VI, sec. 2. For the means of enforcement of the direct responsibility, see Chap. V.

83 See infra, Chap. IV, sec. 2.

84 Charge to Grand Jury, 5 McLean 306 (Fed. Cas. 18267).

The reception of offending individuals after their crime has been committed is likewise an act of complicity. It is often as essential to the success of the enterprise that retreat be afforded the participants as that they be sheltered or aided in the preparation of their undertaking. The government of the state receiving them consents to their offense after the act, and furnishes them aid or protection. It offends thus by complicity after their act as well as by complicity in the beginning.

The international delinquency is the act or omission of a state in complicity with a hostile expedition, or in disregard of the international obligation to prevent hostile attacks on friendly states.

ROY EMERSON CURTIS.

[This article will be concluded in the next number of the JOURNAL.]

TWO REPRESENTATIVES OF THE GROTIAN SCHOOL

The growth of international law, both in precision and in scope, has been one of the marked features of the general development of law in the nineteenth century. It is true that even at the present day the reproach is often cast upon international law that its content is unsettled, its authority vague, and its method unscientific. But one has only to compare the standard text-books of the present day with the treatises that were quoted as authorities in the beginning of the nineteenth century to realize the great progress which has been made towards the establishment of international law upon a truly scientific basis. It cannot fairly be expected that international law should have as yet attained, or shall in the near future attain, the precision and definiteness of municipal law. The last decade of the century did indeed witness the first sitting of an international legislative body in the form of a conference at The Hague, which enacted what may be called international statutory law. But apart from the fact that this body was composed of the representatives of independent, not of federal, states, and therefore its rulings could not be final, the subject-matter with which it dealt was in many cases not such as would admit of definition and analysis after the methods of municipal law. The states composing the family of nations present differences of physical, mental and moral characteristics far more marked than those exhibited by the individuals within a given state, and it is but natural therefore that it should be correspondingly difficult to codify in a precise and scientific manner the rules governing their mutual relations. But while the difficulties attending the codification of international law cannot be denied, there is reason to believe that the growth of international law during the twentieth century will proceed towards its appointed goal as steadily as it has done during the nineteenth century.

Side by side with the increase of definiteness in the rules embodying the practice of nations, there went a development in the theories concerning the nature and character of the rules of international law. Gro

tius had drawn the distinction in 1625 between the natural law of nations and the voluntary law of nations. This distinction formed the very basis of his system, and from its adoption by the majority of the writers of the seventeenth and eighteenth centuries arose what has been called the Grotian school of writers. The system inaugurated by Grotius recognized the moral authority of the natural law over the existing practices of nations, and was to that extent purely deductive in character; but at the same time it was ready to infer from the universality of certain accepted customs, a proof of their conformity with the natural law, and was to that extent inductive in character.

In contrast with the Grotian school of writers, a school of which Pufendorf may be regarded as the leader laid chief stress upon the deductive elements of international law, regarding the law which results from the actual practice of nations as possessed of no authority whatever. On the other hand, another school, which has been given the name of the Positivist school, attached little or no weight to the natural law as a source of international law, but turned to the treaties and customs of nations as embodying the effective positive rules of international law. The Naturalist school of Pufendorf had, except for the publication of Lorimer's volumes on the Institutes of the Law of Nations in 18831884, practically ceased to assert itself during the nineteenth century, while the doctrines of the Positivist school came more and more into favor through the influence of such important works as those of Heffter, Phillimore and Hall. The Grotian school held its ground quite steadily, and while it had fewer adherents in Great Britain and Germany, it claimed the majority of the prominent French and Italian writers.

In 1894 appeared two important French treatises which are fairly representative of that recent school of writers who, while seeking to be practical in their treatment of international relations, at the same time do not lose sight of the theoretical principles underlying the rules of international law. Both of these treatises have recently appeared in new editions,1 and although they differ somewhat in their estimate of

1 Manuel de Droit International Public, par Henry Bonfils, Sixième Édition, Revue et mise an courant par Paul Fauchille. Paris: Arthur Rosseau. 1912. pp. viii, 1121. Cours de Droit International Public, par Frantz Despagnet, Quatrième Édition, Complètement Revue, Augmentée et mise au courant par Ch. de Boeck. Paris: Larose et Tenin. 1910. pp. vi, 1430.

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