亨利-梅因：国际法Lecture 2

ther， have taken place in the law， and the point arose as to whether any such change could be presumed， and by what agency it could have been effected. The judges were very

nearly equally divided on the point， which is a fundamental one affecting the whole view to be taken of the authority of International Law in this country. In the end it was decided by the majority of the judges that no sufficient authority was given for the reception in this country of the so-called International doctrine； but there was no question that this doctrine was the doctrine of the majority of states， and the inconvenience of having one rule for England and another for the rest of the civilised world was palpably so great that Parliament finally stepped in， and in the year 1878 passed what is called the 'Territorial Waters Act，' by which the jurisdiction of the English Courts which had succeeded to the jurisdiction of the Admiral of England was declared to extend according to the International rule to three miles from the coast line of England. In the course of the judgments which were given， which are extremely learned， curious， and interesting， Lord Coleridge. who was with the minority of the judges， used the following language：

　　'My brothers Brett and Lindley have shown that by a consensus of writers， without one single authority to the contrary， some portion of the coast waters of a country is considered for some purposes to belong to the country the coasts of which they wash. I concur in thinking that the discrepancies to be found in these writers as to the precise extent of the coast waters which belong to a country discrepancies， after all， not serious since the time at least of Grotius are not material in this question； because they all agree in the principle that the waters， to some point beyond low-water mark， belong to the respective countries on grounds of sense if not of necessity， belong to them as territory in sovereignty， or property， exclusively， so that the authority of France or Spain， of Holland or England， is the only authority recognised over the coast Raters which adjoin these countries. This is established as solidly as by the very nature of the case any proposition of International Law can be. Strictly speaking， "International Law " is an inexact expression， and it is apt to mislead if its inexactness is not kept in mind. Law implies a lawgiver， and a tribunal capable of enforcing it and coercing its transgressors. But there is no common lawgiver to sovereign states； and no tribunal has the power to bind them by decrees or coerce them if they transgress. The Law of Nations is that collection of usages which civilised states have agreed to observe in their dealings with one another. What these usages are， whether a particular one has or has not been agreed to， must be matter of evidence. Treaties and acts of state are but evidence of the agreement of nations， and do not in this country at least per se bind the tribunals. Neither， certainly， does a consensus of jurists； but it is evidence of the agreement of nations on international points； and on such points， when they arise， the English Courts give effect， as part of English law， to such agreement' （p. 153）。

　　Lord Chief Justice Cockburn， on the other hand， after discussing at length the views of thirty writers of different countries and commenting on the difference between them， goes on to remark： 'Can a portion of that which was before high sea have been converted into British territory without any action on the part of the British Government or Legislature —— by the mere assertions of writers on public law —— or even by the assent of other nations？ And when in support of this position， or of the theory of the three-mile zone in general， the statements of the writers on International Law are relied on， the question may well be asked， upon what authority are these statements founded？ When and in what manner have the nations， who are to be affected by such a rule as these writers， following one another， have laid down， signified their assent to it？ —— to say nothing of the difficulty which might be found in saying to which o

f these conflicting opinions such assent had been given' （p. 202）。

　　It would appear， therefore， from the authorities which I have cited that in the two great English-speaking people of the world， one descended from the other， there prevail two， and possibly three， opinions as to the obligatory force of International Law on individual states. The lawyers and statesmen of the United States of America regard the acknowledgment of and submission to the international system as duties which devolve on every independent sovereignty through the fact of its being admitted into the circle of civilized Governments. Among the English judges， Lord Coleridge considers that the assent of a nation is necessary to subject it to International Law， but that in the case of Great Britain and all the other civilised European Powers this assent has been given either by express action or declaration， or at all events by non-dissent. Lastly， Lord Chief Justice Cockburn， while accepting the view that International Law became binding on states by their assent to it， manifestly thought that this assent must somehow be conveyed by the acquiescing state in its sovereign character， through some public action which its Constitution recognizes as legally qualified to adopt a new law or a new legal doctrine； that is， in Great Britain by Act of Parliament or by the formal declaration of a Court of Justice. The two opinions which I first mentioned， that over and over again propounded in the American Digest and that of Lord Coleridge， though the language used is somewhat inexact and in one case too metaphorical， seem to me to express the doctrine of the whole civilised world outside Great Britain， and to conform to the historical explanation which I will presently place before you. On the other hand， the opinion of Lord Chief Justice Cockburn， which is one to which English judges， always busily occupied in interpreting and applying the laws of this country， are naturally liable， would have caused the greatest inconvenience if it had been declared to be part of the law of England. It practically is that the international rules could only have been imported into our system by one of the modern processes by which our institutions are changed. In that case each separate alleged rule of International Law would have had to be shown to have been engrafted on our legal system by the legislation of Parliament， by the alternative legislation， within certain limits， of the English Courts， or by the conformity of the rule with some provable usage. For a simple rule a most complicated rule would have been substituted.

　　The point immediately before the English Court of Criminal Appeal can never arise again since the passing of the Territorial Waters Act； but it is conceivable， if not likely， that we have not heard the last of the more general question of principle. I may say that it seems to me that the solution of the difficulty can only be supplied by the historical method. As I have asserted many times， these systems of law have not always been extended over the countries in which they are found prevailing by what we call legislation. In more ancient times， and to a great extent even at this day， in that Eastern portion of the world in which so much of the usages of earlier mankind still survive， systems of religion and systems of morals， generally drawing with them some system of laws， gain currency by their own moral influence； certain minds being naturally predisposed to recede them acquiesce in them even with enthusiasm. Mr. Justice Stephen， in the controversial work which he calls 'Liberty， Equality， and Fraternity，' has an eloquent passage on the subject. 'The sources of religion lie hid from us. All that we know is， that now and again in the course of ages some one sets to music the tune which is haunting millions of ears. It is caught up here and there， and repeated till the chorus is thundered out by a body of singers able to drown all discords an

d to force the vast unmusical mass to listen to them. Such results as these come not by observation， but when they do come they carry away as with a flood and hurry in their own direction all the laws and customs of those whom they affect.' What is here said of religion， is true to a certain extent of morality. In the East a body of new moral ideas is sure in time to produce a string of legal rules； and it is said by those who know India and its natives well that the production of what for want of a better name we must call a Code is a favourite occupation with learned and active minds， though of course in a country which nowadays follows to a great extent the morality （though not the faith） of Christian Europe， and receives new laws from a regularly constituted Legislature， the enthusiasm for new moral doctrines is ever growing feebler and the demand for legal rules accommodated to them is becoming less. Now， International Law was a Code in the same sense in which many Eastern collections of rules were Codes. It was founded on a new morality， that which had been discovered in the supposed Law of Nature， and in some minds it excited unbounded enthusiasm.

　　The same process had previously been followed in Europe as regards Roman Civil Law. We may not quite understand the admiration which the technical part of the Roman Law inspired， but of the fact there is no doubt. This process by which laws extended themselves had not quite died out when the international jurists appeared， and in point of fact their system of rules was received by the world very much as a system of law founded on morals is received to this day in the East. No doubt it fell on soil prepared for it. The literate classes， the

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