ENGLISH APPROACHES TO INTERNATIONAL LAW IN THE NINETEENTH CENTURY

Developments in International Law

Volumn 58, Issue , 2007, Pages 65-90

  Lobban, Michael ^a  

^a QUEEN MARY UNIVERSITY OF LONDON   (United Kingdom)

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EID: 85202682470     PISSN: None     EISSN: 09245332     Source Type: Book Series    
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References (125)

1. M. Koskenniemi, The Gentle Civilizer of Nations: the Rise and Fall of International Law 1870-1960 (2002), ch. 1.
2. M. Koskenniemi, The Gentle Civilizer of Nations: the Rise and Fall of International Law 23.
3. M. Koskenniemi, The Gentle Civilizer of Nations: the Rise and Fall of International Law 50.
4. In what follows, I shall focus on English jurists exclusively, omitting discussion both of contemporary American and Scottish jurists. Though a jurist like James Lorimer (1818-1890) was a significant figure, I have omitted discussion of his work since my aim is to explore how common lawyers south of the border dealt with international law issues. English jurists like Holland and Pollock held that Lorimer's conception of international law 'pèche par la base', (Holland, 'The Literature of International Law in 1884', 1 Law Quarterly Review (1885) 100).
5. The quotations are taken from Lord Russell of Killowen, 'International Law', 12 Law Quarterly Review (1896) 322
6. and T.E. Holland's comment that W.E. Hall's work 'found success even among continental jurists, to whom as a rule Hall's adherence to what they called L'école historico-pratique was distasteful' (in T.E. Holland, rev. Pease-Watkin, 'William Edward Hall', 24 Oxford Dictionary of National Biography (2004) 670.
7. For discussions of the 'rival' approaches, see also Lauterpacht, 'The so-called Anglo-American and Continental Schools of Thought in International Law', 12 British Yearbook of International Law (1931) 46.
8. L.Oppenheim(ed.),TheCollectedPapersofJohnWestlakeonPublicInternationalLaw(1914)xxvi.
9. See G. D. Squibb, Doctors' Commons: A History of the College of Advocates and Doctors of Law (1977).
10. The Maria (1799), 1Christopher Robinson's Admiralty Reports 350.
11. See P. Searby, A History of the University of Cambridge, vol. 3. 1750-1870, (1997) 186-192.
12. For the bar, see D. Lemmings, Gentlemen and Barristers: the Inns of Court and the English Bar, 1680-1730 (1990)
13. D. Lemmings, Professors of the Law: Barristers and English legal culture in the eighteenth century (2000). It should be recalled that many of those called as barristers did not practice.
14. Cambridge's Samuel Hallifax published An Analysis of the Roman Civil Law (1774) while Thomas Bever published A Discourse on the Study of Jurisprudence and the Civil Law (1766).
15. The Oxford Regius professor Joseph Phillimore told the Royal Commission on Oxford University in 1852 that his chair was underfunded and that both he and his predecessor (French Laurence) had a practice in London. He claimed only to have been chosen because none else was available. There were no lectures for they interfered with university exams. Parliamentary Papers 1852 (1482) XXII 1, Evidence 254-5.
16. For Stowell, see H.J. Bourguignon, Sir William Scott, Lord Stowell: Judge of the High Court of Admiralty, 1798-1828 (1987).
17. B.P. Levack, The Civil Lawyers in England 1603-1641. A Political Study (1973) 26.
18. The Times, 5 February 1885, col. 7a.
19. R. Phillimore, Commentaries upon International Law, vol. 1 (1854) 1, 4.
20. R. Phillimore, Commentaries upon International Law, vol. 1 (1854) 72.
21. The Hurtige Hane (1801), 3 Christopher Robinson's Admiralty Reports 327-8.
22. The Flad Oyen (1799), 1Christopher Robinson's Admiralty Reports 140.
23. See also The Henrick and Maria (1799), 4 Christopher Robinson's Admiralty Reports 54: 'it is to be remembered that this is a matter not to be governed by abstract principles alone: The use and practice of nations have intervened, and shifted the matter from its foundations of that species.'
24. The Recovery (1807), 6 Christopher Robinson's Admiralty Reports 349.
25. See Le Louis (1817), 2 Dodson's Admiralty Reports 239.
26. The Ringende Jacob (1798), 1 Christopher Robinson's Admiralty Reports 89.
27. Quoted in 1 Law Times (1843) 276.
28. The lectures were published in 1843 in the Law Times.
29. See in general: Brooks & Lobban, 'Apprenticeship or Academy? The idea of a law university, 1830-55' in J.A. Bush & A. Wijffels (eds.), Learning the Law: Teaching and the Transmission of English Law, 1150-1900 (1999) 353-82.
30. In the prospectus for 1864, the Reader in Jurisprudence and International Law announced that he would lecture on the history and present state of the law of blockade, and would give classes on the rights and obligations of neutrals 'using the work of Wheaton as the text-book, and referring to the works of the principal modern jurists, the decisions of the Admiralty and the Prize Courts of England and America, and Debates in Parliament, and State Papers relating to the cases under discussion'. This was of course a highly relevant topic at the time of the American civil war. (The Jurist, 19 March 1864.)
31. D.A. Winstanley, Early Victorian Cambridge (1940) 199.
32. It may be noted that in 1851, jurisprudence was included in the Cambridge Moral and Natural Sciences Tripos (the Law Tripos only being set up in 1858), while in Oxford law and history was a joint degree until 1872.
33. See Johnson, 'The English Tradition in International Law', 11 International and Comparative Law Quarterly (1962) 428;
34. Pearce Higgins, 'Sir Thomas Erskine Holland', 42 Law Quarterly Review (1926) 471.
35. See his obituary in The Times, 15 April 1913, col. 9g.
36. Westlake's political career is well described by M. Koskenniemi, The Times, note 1, 59-60.
37. See also L. Goldman, Science, Reform and Politics in Victorian Britain: the Social Science Association 1857-1886 (2002) 103.
38. Hall's taste for adventure never left him: four years after the publication of his treatise on international law (in 1880), he attempted to join the forces seeking to relieve General Gordon at Khartoum. See the memoir in T.E. Holland, Studies in International law (1898).
39. The domestic liberalism of many international lawyers should not mask their illiberal attitudes to those they did not consider 'civilised': see especially Anghie, 'Finding the Peripheries: Sovereignty and Colonialism in nineteenth century International law', 40 Harvard Journal of International law (1999) 1
40. and Riles 'Aspiration and Control: International Legal Rhetoric and the Essentialisation of Culture', 106 Harvard Law Review (1993) 723.
41. See also Crawford, 'Public International Law in Twentieth-century England', in J. Beatson & R. Zimmermann (eds.), Jurists Uprooted: German-speaking Émigré Lawyers in Twentieth-century Britain (2004) 681-707, which stresses the practical and untheoretical nature of British approaches to international law in the nineteenth century.
42. W.E. Hall, A Treatise on International Law (1884) 552.
43. M. Bernard, A Historical Account of the Neutrality of Great Britain during the American Civil War (1870) 391.
44. Article VI of the Treaty, quoted in Papers relating to the Geneva Arbitration, Parliamentary Papers 1872 (61) LXIX 1, 23.
45. Moreover, the two parties disagreed on the meaning of terms of the treaty, so that it was (as Hall saw it) unclear what impact it would have in future on the conduct of these two countries in respect of each other: Hall, Parliamentary Papers 1872 (61) note 34, 570.
46. Quoted in The Geneva Arbitration, Parliamentary Papers 1873 (145) LXXIV 419, 23.
47. Quoted in The Geneva Arbitration, Parliamentary Papers 1873 (145) 23.
48. Royal Commission on Fugitive Slaves, Parliamentary Papers 1876 [C 1516-I] XXVIII 285 xxxi.
49. Thus, on the issue of what to do when a criminal escaped onto a ship, Cockburn noted how 'completely does the professor [Bluntschli] leave us in the lurch just where we most need his assistance.' Parliamentary Papers 1876 [C 1516-I] xl.
50. Thus, on the issue of what to do when a criminal escaped onto a ship, Cockburn noted how 'completely does the professor [Bluntschli] leave us in the lurch just where we most need his assistance.' Parliamentary Papers 1876 [C 1516-I] xliv.
51. Thus, on the issue of what to do when a criminal escaped onto a ship, Cockburn noted how 'completely does the professor [Bluntschli] leave us in the lurch just where we most need his assistance.' Parliamentary Papers 1876 [C 1516-I] xxxvi.
52. Thus, on the issue of what to do when a criminal escaped onto a ship, Cockburn noted how 'completely does the professor [Bluntschli] leave us in the lurch just where we most need his assistance.' Parliamentary Papers 1876 [C 1516-I] xxv.
53. Thus, on the issue of what to do when a criminal escaped onto a ship, Cockburn noted how 'completely does the professor [Bluntschli] leave us in the lurch just where we most need his assistance.' Parliamentary Papers 1876 [C 1516-I] lv.
54. R v. Keyn (1876), 2 Law Reports, Exchequer Division 173.
55. R v. Keyn (1876), 2 Law Reports, Exchequer Division 81.
56. R v. Keyn (1876), 2 Law Reports, Exchequer Division 191.
57. See Sir H. Maine, International law (1888) 43.
58. Crawford describes the Blackstonian claim (as articulated by Mansfield) as 'historically untenable.' (Crawford, International law note 33, 686.)
59. 2 Law Reports, Exchequer Division 203.
60. 2 Law Reports, Exchequer Division 153-4.
61. J.F. Stephen, A History of the Criminal Law of England 3 vols., (1883) 35, 38.
62. M. Koskenniemi, A History of the Criminal Law of England note 1, 34.
63. J. Austin, The Province of Jurisprudence Determined, (ed. by W.E. Rumble, 1995) 30.
64. J. Austin, The Province of Jurisprudence Determined, (ed. by W.E. Rumble, 1995)109.
65. J. Austin, The Province of Jurisprudence Determined, (ed. by W.E. Rumble, 1995) 110.
66. J. Austin, The Province of Jurisprudence Determined, (ed. by W.E. Rumble, 1995) 122.
67. He thus criticized Grotius and Pufendorf for 'confound[ing] positive international morality, or the rules which actually obtain among civilized nations in their mutual intercourse, with their own vague conceptions of international morality as it ought to be.' The Province of Jurisprudence Determined, (ed. by W.E. Rumble, 1995) 160.
68. He thus spoke of 'the human laws, which I style positive morality, as considered without regard to their goodness or badness.' The Province of Jurisprudence Determined, (ed. by W.E. Rumble, 1995) 111.
69. He thus spoke of 'the human laws, which I style positive morality, as considered without regard to their goodness or badness.' The Province of Jurisprudence Determined, (ed. by W.E. Rumble, 1995) 20.
70. He thus spoke of 'the human laws, which I style positive morality, as considered without regard to their goodness or badness.' The Province of Jurisprudence Determined, (ed. by W.E. Rumble, 1995) 124. Austin went on to say that the law of nations was therefore only 'sentiments current among nations generally': but he noted that if any particular nation commanded another to forbear from conduct which the law of nations condemned, this would be 'law in the proper signification of the term' - though Austin immediately went on to qualify this, by saying that 'speaking precisely' for it to be a law, it would have to be issued as a political superior.
71. He thus spoke of 'the human laws, which I style positive morality, as considered without regard to their goodness or badness.' The Province of Jurisprudence Determined, (ed. by W.E. Rumble, 1995) 112.
72. He thus spoke of 'the human laws, which I style positive morality, as considered without regard to their goodness or badness.' The Province of Jurisprudence Determined, (ed. by W.E. Rumble, 1995) 126.
73. See, e.g., R. Phillimore, The Province of Jurisprudence Determined, (ed. by W.E. Rumble, 1995) note 15, 72.
74. T. Twiss, The Law of Nations considered as Independent Political Communities, vol. 1 - On the Right and Duties of Nations in Time of Peace (1861), v-vi.
75. T. Twiss, The Law of Nations considered as Independent Political Communities, vol. 1 - On the Right and Duties of Nations in Time of Peace (1861), 111.
76. Johnson, The Law of Nations considered as Independent Political Communities, vol. 1 - On the Right and Duties of Nations in Time of Peace (1861), note 28, 440.
77. Sir H. Maine, International Law, (1861), note 50, 32.
78. H. Maine, Ancient Law: its connection with the early history of society and its relation to modern ideas (1930) 97-8.
79. H. Maine, Ancient Law: its connection with the early history of society and its relation to modern ideas (1930) 106, 108.
80. H. Maine, Ancient Law: its connection with the early history of society and its relation to modern ideas (1930) 109.
81. H. Maine, Ancient Law: its connection with the early history of society and its relation to modern ideas (1930) 57.
82. H. Maine, Ancient Law: its connection with the early history of society and its relation to modern ideas (1930) 59.
83. H. Maine, Ancient Law: its connection with the early history of society and its relation to modern ideas (1930) 114.
84. See Landauer, 'From Status to Treaty: Henry Sumner Maine's International Law', 15 Canadian Journal of Law and Jurisprudence (2002) 227-8.
85. Sir H. Maine, International Law, 'From Status to Treaty: Henry Sumner Maine's International Law', 15 Canadian Journal of Law and Jurisprudence note 50, 60-1.
86. Sir H. Maine, Lectures on the Early History of Institutions (1875) 364.
87. Maine, International Law, supra note 50, 26.
88. For an analysis, see Landauer, International Law, note 71.
89. Maine, International Law, supra note 50, 51.
90. Maine, International Law, supra note 50, 49.
91. Maine, International Law, supra note 50, 53.
92. M. Bernard, International Law, note 35, 401 wrote, 'it is surely an error to treat rules of this kind as if they had all the sharpness and precision of municipal law, and created the same definite obligations, with the same perfect right to have every breach repaired by appropriate satisfaction. This is not their use or intention, nor are they capable of being so employed.'
93. See J. Westlake, International Law: Part I Peace (1910) 13;
94. see also F. Pollock, Essays in Jurisprudence and Ethics (1882) 35.
95. J. Westlake, Chapters on the Principles of International Law (1894) x.
96. J. Westlake, Collected Papers, (1894) note 6, 397. By observance, he meant that such rules were habitually followed in practice; and by recognition, the fact that it was recognised both by the person obliged and by others that he had no choice in the matter.
97. J. Westlake, Collected Papers, (1894) 399.
98. J. Westlake, Chapters, (1894) note 85, 2-3.
99. Westlake noted Austin's use of the adjective 'positive' to show that the international 'rules so described are sufficiently enforced and observed to have an objective existence'; but objected to the noun 'morality' as confusing socially obligatory rules with private ethics, J. Westlake, Chapters, (1894) 8.
100. J. Westlake, Chapters, (1894) x.
101. J. Westlake, Chapters, (1894) 8, 7.
102. This can be seen in the following definitions he gave: 'A rule set by a sovereign political authority is contained in a statute-book, or in writings or traditions which are authoritative in the eyes of a judge, whose decisions will in their turn be carried into effect by the executive department. A rule which forms part of International Law is contained in writings, traditions or sentiments which are authoritative in the eyes of civilized men, whose judgment on its breach will receive a pretty effective execution by the force, or at least by the disapprobation, of the states concerned.' J. Westlake, Collected Papers, (1894) note 6, 398.
103. J. Westlake, Collected Papers, (1894) note 6, 622-3.
104. See also the discussion in Anghie, Collected Papers, (1894) note 32.
105. J. Westlake, Chapters, (1894)note 85, viii.
106. Anghie, Chapters, (1894) note 32, 31-2 notes the irony of international lawyers like Westlake claiming that Austin used the word 'law; in a special and limited sense, only to do the same themselves in order to exclude the 'uncivilized' from its ambit.
107. T.J. Lawrence, 'Is there a true International law?' in T.J. Lawrence, Essays on some disputed questions in modern International law (1885) 16.
108. T.J. Lawrence, 'Is there a true International law?' in T.J. Lawrence, Essays on some disputed questions in modern International law (1885) 26.
109. T.J. Lawrence, 'Is there a true International law?' in T.J. Lawrence, Essays on some disputed questions in modern International law (1885) 23.
110. Russell, 'Is there a true International law?' in T.J. Lawrence, Essays on some disputed questions in modern International law (1885) note 5, 313.
111. Russell, 'Is there a true International law?' in T.J. Lawrence, Essays on some disputed questions in modern International law (1885) 317.
112. Russell, 'Is there a true International law?' in T.J. Lawrence, Essays on some disputed questions in modern International law (1885) 331-2.
113. T.E. Holland, The Elements of Jurisprudence (1882) 34. Emphasis added.
114. T.E. Holland, Lectures on International Law, (ed. by T.A. Walker & W.L. Walker 1933) 26.
115. T.E. Holland, Lectures on International Law, (ed. by T.A. Walker & W.L. Walker 1933) 6.
116. T.E. Holland, Lectures on International Law, (ed. by T.A. Walker & W.L. Walker 1933) 9: 'We have here the central fact which makes possible a Science of International Law, viz., an Opinion, widely enough spread to produce important historical results, to the effect that States may have Rights and Duties similar or, at least, analogous to the legal Rights and Duties of individuals.'
117. F. Pollock, Lectures on International Law, (ed. by T.A. Walker & W.L. Walker 1933) note 84, 23.
118. W.E. Hall, Lectures on International Law, (ed. by T.A. Walker & W.L. Walker 1933) note 34, 15-16.
119. W.E. Hall, Lectures on International Law, (ed. by T.A. Walker & W.L. Walker 1933) 59-60.
120. F. Pollock, Lectures on International Law, (ed. by T.A. Walker & W.L. Walker 1933) note 84, 34.
121. F. Pollock, Lectures on International Law, (ed. by T.A. Walker & W.L. Walker 1933) note 84, 37.
122. Johnson, Lectures on International Law, (ed. by T.A. Walker & W.L. Walker 1933) note 28, 439 noted that Hall was regarded by many as the best writer on this subject produced by Britain.
123. T.J. Lawrence, The Principles of International Law, (2nd ed., 1897) 22.
124. He went on, 'The principles and the rules based upon them may be morally good or morally bad; but they determine the conduct of governments in relation to one another, they define the rights of states and set forth their obligations, and therefore they, and they alone, are International Law', The Principles of International Law, (2nd ed., 1897) 23.
125. He went on, 'The principles and the rules based upon them may be morally good or morally bad; but they determine the conduct of governments in relation to one another, they define the rights of states and set forth their obligations, and therefore they, and they alone, are International Law', The Principles of International Law, (2nd ed., 1897) 24.