1-2. Treaty Obligation from the Protestant Reformation to 1919: Parts 1-2 "Introduction" and "Treaty as a Legal Source"

Allen Z. Hertz was senior advisor in the Privy Council Office serving Canada's Prime Minister and the federal cabinet. He formerly worked in Canada's Foreign Affairs Department and earlier taught history and law at universities in New York, Montreal, Toronto and Hong Kong. He studied European history and languages at McGill University (B.A.) and then East European and Ottoman history at Columbia University (M.A., Ph.D.). He also has international law degrees from Cambridge University (LL.B.) and the University of Toronto (LL.M.).

Foreword

This is first publication of the integral text of "Treaty Obligation from the Protestant Reformation to 1919." However, portions dealing with "Honour's Role in the International States' System" were published in Denver Journal of International Law and Policy, Vol. 31 (2002), pp. 113-155, and also appear as a separate posting on this website. Research for this present essay took place in Ottawa during service with the Privy Council Office which greatly assisted by regularly making conveniently available a variety of materials, including some rare books, from the Supreme Court of Canada Library, the National Library of Canada and the Library of Parliament. "Treaty Obligation from the Protestant Reformation to 1919" is current to the end of 2002.

PART 1: INTRODUCTION

Twentieth-century international law places special emphasis on the treaty as a legal source and insists that treaty obligations are legally binding.  However, Cambridge University Professor of International Law Clive Parry (1917-1982) significantly told his students that the moral or "natural law" requirement to keep treaty promises was in the 19^th century commonly considered to be binding in honour alone.  He also argued that before 1914 publicists and diplomatists tended to exclude treaties from the ambit of international law which, he said, was then perceived to be primarily customary.^[1]  This study will test the validity of Parry’s thesis via an examination of treaty obligation from the 16th-century Protestant Reformation to the 1919 Paris Peace Conference that brought an end to the First World War.  Particular attention will be paid to the meaning of “honour” and its significance for the European States' system that gave rise to the law of nations.

Also on this website is an earlier published study showing that, in the Middle Ages, the moral or "natural law" requirement to keep treaty promises was binding in canon law by virtue of the pope’s jurisdiction over solemn oaths, then invariably used to guarantee the fulfilment of agreements.^[2]  As Christians, treaty-breaking kings were subject to the papal court “by reason of sin,” in this instance the very grave canonical offence of perjury.  However, in the early 16th century the Protestant Reformation destroyed Christendom’s legal unity, thereby setting the stage for the gradual development of the classical system of international law.^[3]  As in the Middle Ages, lawyers continued to intone pacta sunt servanda (agreements are to be kept).^[4]  But the post-medieval framework lacked a legal remedy for breach of treaty.  Here, it will be demonstrated that for four hundred years, the moral or "natural law" requirement to keep treaty promises was deemed to be binding in honour alone.

Part 2 reviews classical international law’s assessment of the treaty as a legal source.  Part 3 shows that, before the First World War, treaties were not always accepted as an integral part of international law.  Part 4 explains why treaties were not seen as legally binding, and describes how international law governed treaties via pacta sunt servanda as a moral or "natural law" requirement.  Part 5 illuminates the State’s moral personality with reference to both personification and treaties as “contracts of kings.”  Honour is identified as one of the principal features of pre-1914 European civilization and international relations in Part 6.  Part 7 portrays the “old diplomacy” as a milieu focusing on honour.  Part 8 shows what kings, prime ministers, philosophers and lawyers had to say about treaties binding in honour.  The honour of treaties as seen in Britain and the USA is the subject of Parts 9 and 10 respectively.  Part 11 recalls that, before 1914, all treaties were a “gentlemen’s agreement” -- an expression which only made sense in public international law after 1919, i.e. as a specific exception to the new rule that treaties are normally binding in law. Part 12 treats the “new diplomacy” that arose during the First World War and discusses the rise of the legal paradigm.  Finally, Part 13 highlights the law-centered order inaugurated by the 1919 Paris Peace Settlement which created conditions supporting twentieth-century discourse about treaties as legally binding.

PART 2: THE TREATY AS A LEGAL SOURCE

Today public international law is understood as being customary, conventional (i.e. treaty-based), or both.^[5] Setting out the law for deciding cases, the Statute of the Permanent Court of International Justice in 1920 significantly gave “international conventions” pride of place “as the rules expressly recognized by the contesting states.”^[6] However, the rather exceptional importance now accorded to treaties as a legal source is not limited to the cases of the Permanent Court or to those of its successor, the International Court of Justice (ICJ). Thus, Whewell Professor of International Law at Cambridge University and then ICJ judge, Sir Robert Yewdall Jennings (1913-2004) had earlier opined:

The law-making treaty is by far the most important source of general international obligation, and the term ‘international legislation,’ which has been freely applied to this process of law-making by treaty, is doubtless justified both by the close analogy to the legislative processes of domestic law and by the importance and volume of its achievement.^[7]  

Previous centuries also saw the distinction between customary law and rules embodied in treaties.^[8]  However, from the 16th-century Protestant Reformation to 1919-1920, treaties were seldom considered to be the best source or evidence of the law of nations for a variety of reasons, including:

• long dominance of the municipal analogy which stubbornly compared treaties to the bilateral contracts of private persons;
• relatively late debut of the multilateral treaty which was precondition for the law-making treaty as procedure analogous to legislation domestically;
• long lack of readily available, published collections of treaties;
• general understanding that the moral or "natural law" requirement to fulfill treaty promises was not legally binding; and
• absence of permanent international arbitral or judicial institutions to support anything like the current focus on inter partes litigation.

Early exponents ignore treaties as legal source?

The treaty was not valued as a legal source by founders like Francisco Suárez (1548-1617) and Hugo Grotius (1583-1645) who saw the positive law of nations as essentially customary.^[9]  As evidence of international custom, the “teachings of the most highly qualified publicists” then received more emphasis than treaties.  According to Grotius:

The proof for the law of nations is similar to that for unwritten municipal law; it is found in unbroken custom and the testimony of those who are skilled in it. The law of nations, in fact, as Dio Chrysostom well observes, ‘is the creation of time and custom.’  And for the study of it the illustrious writers of history are of the greatest value to us.^[10]

This early failure to highlight treaties as a legal source is partly explicable by the virtual absence of study material until some treaty collections were published towards the late 17^th century.^[11] An example is the Codex iuris gentium of German polymath Gottfried Wilhelm von Leibniz (1646-1716).  He insisted that treaties are invaluable for understanding both history and international law — a belief held despite his view of “the weakness of paper chains” made by “rulers [who] play cards in private life and with treaties in public affairs.”^[12]  However, empiricism was not the methodology favoured by contemporary jurists who relied on English philosopher Thomas Hobbes (1588-1679) for the axiom that “the law of nature and the law of nations is the same thing.”^[13] 

Apart from a few basing “the law of nations upon natural law as modified by usage and express compact,”^[14] the prevailing trend was represented by German historian and jurist Samuel Pufendorf (1632-1694), for whom State practice did not create norms.^[15]  So fully did he identify international law with natural law that logically no room remained for treaties as a legal source:

As for those persons who rank under the law of nations, the particular compacts of two or more States, concluded by leagues and treaties of peace, to us their notion appears very incongruous.  For although the law of nature in that part of it concerning the keeping of faith, doth oblige us to stand to such agreements; yet the agreements themselves cannot be called laws, in any propriety of speech or of sense.  Besides they are almost infinite in number, and commonly are settled only for a time.  Nor do they any more constitute a part of law in general, than the covenants and bargains of particular subjects with each other, do belong to the body of the civil law of the kingdom: but they are rather to be esteemed the subject and the concern of history.^[16]

German philosopher and mathematician Christian Wolff (1679-1754) was hardly more accommodating to treaties:

The stipulative law of nations has its equivalent in the private law of citizens, because it has its origins in their agreements.  Therefore just as the private law for citizens, derived from agreements entered into between themselves, is considered as having no value at all as civil law for a certain particular state, so also the law for nations, derived from agreements entered into with other nations, it seems cannot be considered as the law of nations.^[17]  

Similar was the view of Swiss jurist Emmerich de Vattel (1714-1767):

The different engagements into which States can enter, produce a new kind of law of nations which is called ‘conventional’ or ‘of treaties’.  Since it is evident that a treaty only binds the contracting parties, the conventional law of nations is not at all a universal law, but rather a particular law.  All that can be done with this subject matter in a treatise on the law of nations, is to provide the general rules which States must respect with regard to their treaties. The details of the different agreements which are concluded among specific States, and the resulting rights and obligations, are matters of fact which belong to the realm of history.^[18]

Treaties fare better with empiricists?

Although Vattel was widely read on both sides of the Atlantic, natural law was even then beginning to lose its stranglehold. Voltaire “derided Grotius, Pufendorf, Vattel and other natural lawyers as bores, mediocrities and imitators.”^[19]  Dutch jurist Cornelius van Bynkershoek (1673-1743) pointed to the future in tempering naturalism with a positivism that sought international custom in recent State practice rather than in the examples from antiquity that studded Grotius’ writing.^[20]   


Bynkershoek doffed his cap to natural law in saying that “reason is the soul of the law of nations” and in saluting “the dictates of reason, whose authority is so great in defining the laws of nations.”^[21]  However, he cautiously identified treaties as an element of State practice that could, if sufficiently consistent, constitute customary law:

The rule of custom may be learned from the almost unbroken practices in treaties and edicts, for sovereigns have often made such regulations [about contraband] by treaties with a view to a possible outbreak of war, and also by edicts after war has broken out.  I said ‘almost unbroken practices’, for one or two treaties which vary from the general usage do not alter the law of nations.^[22]    

Bolder were French prelate and publicist Gabriel Bonnot de Mably (1709-1785) and German jurist Georg Friedrich von Martens (1756-1821). They took an even sharper empiricist turn in trying to use treaties as evidence of the “public law of Europe,” a notion that is somewhat different from that of international law.^[23]  According to Mably:

Everyone knows that treaties are the archives of nations; that they embody the title deeds of all the peoples, the reciprocal engagements which bind them, the laws which they have imposed upon themselves, the rights which they have acquired or lost.^[24] 

Saluting the compilers of the great collections, Mably undertook — but did not complete — the more difficult analytical task of comparing same-subject-matter treaties and extracting from them stipulations which “acquire among the nations the same authority as the civil law among citizens of the same State.”^[25]  


Similarly, Martens in 1788 put treaty collections in first place among the “books necessary to those who study the Law of Nations.”^[26]  He too believed that:

by comparing the treaties that the powers of Europe have made with one another, we discover certain principles that have been almost universally adopted by all the powers that have made treaties on the same subject.^[27]  [...] Analogy often forms the basis of decisions in the affairs of nations.  It is no more than the application of what has been determined by treaty or custom in certain cases, to other cases which resemble them.^[28]

British parliamentarian and political writer Edmund Burke (1729-1797) rhapsodized about treaties as the public law of Europe:

All this body of old conventions, composing the vast and voluminous collection called the corps diplomatique, [which] forms the code or statute law, as the methodized reasonings of the great publicists and jurists form the digest and jurisprudence of the Christian world.^[29]  

Similarly, Scottish physician, barrister and publicist Sir James Mackintosh (1765-1832) taught Lincoln’s Inn law students that no man can be master of the “law of Europe” without being acquainted with “the treaties which have materially affected the distribution of power and territory among the European states.”  He pointed to the “diplomatic and conventional law of Europe... as an important supplement to the practical system of our modern law of nations, or rather as a necessary part of it,” introducing principles into “the public code of the Christian commonwealth.”^[30]

After the Napoleonic Wars, German public lawyer Johann Ludwig Klüber (1762-1837) ranked treaties first among legal sources.  Conceding the absence of treaties common to all European States, he followed Mably and Martens in asserting that international law could be distilled from identical treaty provisions and derived by analogy based on the principles expressed therein.^[31]  


Significantly, this tradition passed via Swiss jurist Johann Kaspar Bluntschli (1808-1881)^[32] to future USA President Woodrow Wilson who, as a Princeton University law professor, put treaties at the centre of his conception of international law.^[33]  In 1889, Wilson paid tribute to writers like Grotius and Vattel for their statement of “almost self-evident principles” (i.e. natural law), but then he went on to opine that international law’s:

only formal and definite foundations... are to be found in the treaties, by which states, acting in pairs or in groups, have agreed to be bound in their relations with each other, and in such principles of international action as have found their way into the statutes or the established judicial precedents of enlightened individual states.  More and more international conventions [sic] come to recognize in their treaties certain elements of right, of equity, and of comity as settled, as always to be accepted in transactions between nations.^[34]

 

Late birth of the multilateral treaty

Although empiricists tried to elevate the treaty’s importance as legal source, the bulk of classical international law remained stubbornly customary.^[35]  This is partly explained by the slow gestation of the multilateral treaty which was not born till the 1815 Final Act of the Congress of Vienna.^[36]  For example, the dozen or so States waging the War of the Spanish Succession, ended the conflict with more than twenty treaties (1713-1714).^[37]  Even after the mid 19^th century, when the multilateral treaty had already taken significant steps as a device pregnant with legislative potential, some governments remained cool to using it to systematize and clarify existing international law.  Thus, an invitation to accede to the 1864 Geneva Red Cross Convention received a reply stating that “it has always been deemed at least a questionable policy, if not unwise, for the United States to become a party to any instrument to which there are many other parties.”^[38]  This 1868 position underlines the point that, up to that time, only very limited use had been made of the multilateral treaty “as a vehicle for bringing about a transformation in the nature and range of international law.”^[39]  


Against this background, many jurists remained comfortable with a tradition that deprecated treaties as a source of international law.  This is significant because, in the period before the First World War, the treaty’s juridical defects directly limited the ability of States to develop international law and create general permanent institutions like the League of Nations, the United Nations and the World Court.

Did Europe and Britain differ on treaties?

Beginning in the 18^th century, there was a divergence between British and European views of the treaty’s status as a source of law.  Until the Crimean War and the 1856 Paris Declaration on Maritime Law, Britain — as paramount naval power — wished to abide by the customary Consolato del mare which allowed wartime seizure of enemy goods aboard neutral ships on the high seas.^[40]  However, France which had been seizing neutral ships for carrying enemy goods, in the 1780's joined the USA and other countries in treaties stipulating “free ships free goods.”^[41]  British lawyers reacted with vigorous defence of the Royal Navy’s wartime right to search for enemy goods aboard neutral ships on the high seas.  For the sources and evidence of international law, British lawyers tended to emphasize custom and deprecate treaties, partly because they wished to avoid the effect of these foreign treaties prohibiting belligerents from searching neutral vessels on the high seas.  In the 1801 edition of his 1758 monograph on the right of maritime search, the 1^st Lord Liverpool (1729-1808) rejected the “floating sovereignty” propounded by French theorists:

These enemies and rivals of the naval power of Great Britain have entered into treaties, laying down certain rules which they wish to have observed, and to the observance of which they think they have a right to compel Great Britain, though no party to them.^[42]

British critique of treaties as legal source?

  

Scottish advocate and Glasgow judge James Reddie (1773-1852) exhibited a caution fairly representative of the British Isles.  He specifically faulted Mably, Martens and Klüber for allegedly reducing the study of international law to collecting, arranging and abstracting stipulations from two hundred years of treaties.  He insisted that treaties are only binding between the parties as particular law:

Learned and industrious men... may collect from the great numbers of treaties which have been concluded among civilised nations the usual subjects of stipulation, and may, by arranging and classifying the rules so stipulated, produce a systematic work, binding and obligatory upon the contracting parties, so far as the treaties out of which it is compiled are still in existence or force; and such a compilation may, no doubt, be otherwise useful historically.  But it is vain to maintain that in this way any code of international law can — consistently with sound legal principle or accurate logical deduction — be reared up or created, such as to be binding upon the nations who are not parties to the treaties, or even upon the contracting parties, after those treaties have expired from lapse of time, or ceased, from other legitimate causes, to be legally obligatory.^[43]

Sir William Harcourt (1827-1904) was an Inner Temple barrister.  Before becoming Cambridge University’s Whewell Professor of International Law and then Solicitor General, he penned a sharp critique of French publicist Laurent Basile Hautefeuille (1805-1875), said to see the common law of nations wrongly as almost exclusively derived from treaties:

Hautefeuille will take a single treaty or a batch of treaties, and finding in them certain stipulations, will conclude that these clauses are declaratory of the common law [of nations].  The reasonable conclusion is exactly the opposite.  The stipulations were introduced because without them the common law [of nations] would take a different disposition.  It would be as reasonable to assert that the statute book is the source of the common law [of England], where as a general rule, its enactments are in derogation of that law.  Instead of the conventional law of treaties being the common, it is, in fact, the exceptional law of nations.^[44]

Edinburgh University Professor of Public Law, James Lorimer (1818-1890) also took a cautious view of the treaty’s role:

No single treaty can have the value of a well established custom as a guide to our knowledge of the law of nations, either in itself, or as interpreted by the international consciousness of a particular epoch.  A treaty indicates only what the parties to it have consented to hold as the relations subsisting between themselves at the period of contracting it, and, inasmuch as this consent may have been brought about, not by the coincidence of reason and ultimate will, but by violence and selfishness on the one side, and fear or stupidity on the other, it is quite possible that a treaty may not have the value even of an isolated and temporary instance of international understanding.  It may never have been carried out at all, either on the ground that one of the parties to it promised what was impossible, or what he had no intention of performing, except under the continuance of the compulsitor with which he had agreed to dispense.^[45]

A priest and international law professor at both Cambridge and the University of Chicago, Thomas Lawrence (1849-1919) was also skeptical about treaties as a legal source: 

There is a great difference of opinion among writers of International Law as to whether treaties are properly speaking part of that law.  The common English view is that most treaties merely register a bargain between the contracting parties, each surrendering something to the other, in order to gain from the other something else he deems more important.  On the other hand, a school of Continental publicists exalt treaties into a corpus of International Law, ascribing to them, or rather to a number of them arbitrarily selected because they set forth special views, a transcendental and altogether fictitious importance.^[46] 

However, Lawrence cautiously recognized: “If treaties which really legislate are few, treaties which really declare the law are fewer.”[47]  And later, he emphasized:

Some treaties, but very few, become after a greater or less time, Sources of Law.  But the vast majority of treaties are valueless as evidence of what the law is, though they may be of the highest importance as creating new political arrangements or removing old subjects of contention.[48]

Lincoln’s Inn barrister and legal writer William Edward Hall (1835-1894) was equally reluctant to recognize the “claim to exceptional reverence” of  the “so-called conventional law.” With the exception of the then very few treaties specifically “declaratory of law as understood by the contracting parties,” Hall thought their value was not “as a source of law, but because they show the flow and ebb of opinion, and its strength at a given time with reference to particular doctrines or practices.”  Conceding that “treaties are usually allied with a change of law,” he insisted that “they have no power to turn controverted into authoritative doctrines.” ^[49] 


As Whewell Professor of International Law at Cambridge University, John Westlake (1828-1913) respected the centuries-old understanding that international law derives from reason and custom, the latter including treaties as evidence of the “practice of states.”  However, he cautioned that treaties are “so often concluded with a view to particular circumstances that great care must be taken in using them as evidences of international law.”^[50]

Notes to Parts 1 and 2

---

1.  Clive Parry, “Foreign Policy and International Law,” in British Foreign Policy Under Sir Edward Grey, ed. Sir Francis Harry Hinsley (Cambridge, 1977), 89-110, 558-559.

2.  Allen Z. Hertz, “Medieval Treaty Obligation,” Connecticut Journal of International Law, vol. 6, Number 2 (1991), 425-443. A version without footnotes is available as a November 2009 posting at www.allenzhertz.com

3.  Garrett Mattingly, Renaissance Diplomacy (Harmondsworth, 1965), Ch. 28: “Law Among Nations,” 269-281; ibid., 275: “After mid-century [1550], large areas of Northern and Western Europe revolted from the Roman canon law altogether, or at least from all that part of it which had helped to underpin the public law of the Latin West.  It became useless for publicists to appeal to the sanctions of the Church to guarantee treaties or protect ambassadors, or to mitigate the horrors of war.”

4.  Manfred Lachs, “Pacta Sunt Servanda,” in Encyclopedia of Public International Law, dir. Rudolf Bernhardt, vol. 7 (Amsterdam-New York, 1984), 364-371; Arnold Duncan, Lord McNair, The Law of Treaties (Oxford, 1961), 493-494.

5.  Oscar Schachter, “Entangled Treaty and Custom,” in International Law at Time of Perplexity: Essays in Honour of Shabtai Rosenne, ed. Yoram Dinstein and Mala Tabory (Dordrecht, 1989), 717-738.

6.  Statute of the International Court of Justice, Article 38(1)(a).

7.  Sir Robert Y. Jennings, The Progress of International Law: An Inaugural Lecture (Cambridge, 1960), 27; but see also Jennings, “Treaties as ‘Legislation’,” in Jus et Societas: Essays in Tribute to Wolfgang Friedmann, ed. Gabriel M. Wilner (The Hague, 1979), 159-168.

8.  Custom was sometimes called the “common law” of nations, see James Reddie, Inquiries in International Law Public and Private, 2nd ed. (Edinburgh, 1851), 234.

9.  Charles S. Edwards, Hugo Grotius the Miracle of Holland: A Study in Legal and Political Thought (Chicago, 1981), 71-113.

10.  Hugo Grotius, De jure belli ac pacis libri tres, in Classics of International Law, ed. James Brown Scott, vol. 2: On the Law of War and Peace Three Books, trans. Francis W. Kelsey et al. (New York, 1925), Bk. I, Ch. 1, § 14(2):44.

11.  Antonio Truyol y Serra, “Geschichte der Staatsvertäge und Völkerrecht,” in Internationale Festschrift für Alfred Verdross zum 80. Geburtstag (München and Salzburg, 1971), 509-522, at 513; Clive Parry, “Of Treaties,” in Multum Non Multa: Festschrift für Kurt Lipstein aus Anlaß Seines 70. Geburtstages, ed. Peter Feuerstein and Clive Parry (Heidelberg-Karlsruhe, 1980), 221-239, at 225-226.

12.  Preface to Codex iuris gentium (1693), in Leibniz: Political Writings, trans. Patrick Riley, 2nd ed. (Cambridge, 1988), 165-170.

13.  Thomas Hobbes, Leviathan, ed. Herbert W. Schneider (Indianapolis-New York, 1958), Part 2, Ch. 30, 276-277.

14.  Henry Wheaton, History of the Law of Nations in Europe and America from the Earliest Times to the Treaty of Washington, 1842 (New York, 1845), 105; possibility of “all or most peoples” agreeing to a conventional law of nations raised by Johann Wolfgang Textor, Synopsis juris gentium, in Classics of International Law, ed. Ludwig von Bar, vol. 2: Text of 1680 trans. John Pawley Bate (Washington, 1916), Ch. 1, §§ 21 and 24:6-7.

15.  Samuel Pufendorf, Of the Law of Nature and Nations, Eight Books, ed. Basil Kennett, 2nd ed. (Oxford, 1710), Bk. II, Ch. 3, § 22:121-123.

16.  Ibid., 123.

17.  Christian Wolff, Jus gentium methodo scientifica pertractatum, in Classics of International Law, ed. Otfried Nippold (Oxford, 1934), Vol 1: Facsimile of 1764 Latin Ed.; Vol 2: Trans. Joseph H. Drake, Prolegomena, § 23:18.

18.  Emmerich de Vattel, Le Droit des gens ou principes de la loi naturelle appliqués à la conduite et aux affaires des nations et des souverains, in Classics of International Law, Facsimile of 1758 ed., intro. Albert de la Pradelle & trans. Charles G. Fenwick (Washington, 1916), vol. 1, Préliminaires, § 24:13 (French); vol. 3, Introduction, § 24:8 (English); though rejecting the treaty as a legal source, Vattel studded his work with countless treaty references, see Vattel, Le Droit des gens ou principes de la loi naturelle appliqués à la conduite et aux affaires des nations et des souverains, vol. 3: Notes et General Analytical Tables, by M.S. Pinheiro-Ferreira (Paris, 1838), Introduction, § 24:22-23.

19.  Peter Gay, The Enlightenment: An Interpretation, vol. 2 (New York, 1969), 459.

20.  J.L. Brierly, The Law of Nations: An Introduction to the International Law of Peace, 6^th ed., ed. Sir Humphrey Waldock (Oxford, 1963), 36-37.

21.  Cornelius van Bynkershoek, Qaestionum juris publici libri duo, in Classics of International Law, Facsimile of the 1737 Latin ed., intro. J. de Louter and trans. Tenney Frank (Oxford, 1930), vol. 2: Trans., Bk. I, Ch. 2:20-21.

22.  Ibid., Bk. I, Ch. 10:67; for refusal to rest the law on a handful of treaties, see Bk. I, Ch. 12:79-80.

23.  Gabriel Bonnot de Mably’s Droit public de l’Europe, fondé sur les traités (1747) is more descriptive than prescriptive, see Oeuvres complètes de l’Abbé de Mably, vols. 7-10 (Toulouse-Nîmes, 1793); “public law of Europe” was used for Europe’s States’ system or constitution, i.e. for something geographically narrower and more political than “natural” or “international law,” see Frederick Gentz, On the State of Europe Before and After the French Revolution, trans. John Charles Herries, 2^nd ed. (London, 1803), 365, n. A; “questions affecting the great public law of Europe” were for the five Great Powers sitting alone, see Foreign Secretary Lord Malmesbury, Apr. 18, 1859, Lords, Parl. Deb., 3^rd ser., vol. 153:1836.

24.  Droit public de l’Europe, in Oeuvres de Mably, vol. 7:219.

25.  Ibid., 219-220; Mably’s work is not what would be regarded today as a legal study, but rather an historical commentary on post-1648 political and trade treaties, see Sir F. H. Hinsley Power and the Pursuit of Peace: Theory and Practice in the History of Relations Between States (Cambridge, 1963), 166.

26.  Georg Friedrich von Martens, A Compendium of the Law of Nations, Founded on the Treaties and Customs of the Modern Nations of Europe, trans. William Cobbett (London, 1802), Introduction, § 8:11.

27.  Ibid., Introduction, § 3:3-4.

28.  Ibid., Bk. II, Ch. 2, § 5:63.

29.  Letters on a Regicide Peace, in The Works of Edmund Burke (New York, 1859), vol. 2: 254.

30.  “A Discourse on the Law of Nature and Nations,” in The Miscellaneous Works of the Right Honourable Sir James Mackintosh, vol. 1 (London, 1846), 341-387, at 384-385.

31.  Jean-Louis Klüber, Droit des gens moderne de l’Europe, vol. 1 (Paris, 1831), § 3:5-6.

32.  Johann Kaspar Bluntschli, El Derecho internacional codificado, trans. José Diaz Covarrubias (Mexico City, 1871), Introduction, 3-4; Bk. I, § 13:69.

33.  Paying less attention to treaty law per se than to the “principles of law established by the great international conventions,” Wilson taught (1891-1894) international law to Princeton students, see The Papers of Woodrow Wilson, ed. Arthur S. Link (Princeton, 1966-1994), [hereinafter cited as PWW], vol. 7:5-7, 453-457; vol. 8:381-383.

34.  The State (New York, 1889), §§ 1216-1217, reproduced in PWW, vol. 6:280-281.

35.  J.G. Starke, Introduction to International Law, 10^th ed. (London, 1989), 16, 18, 35-36.

36.  Act of the Congress of Vienna, signed between Austria, France, Great Britain, Portugal, Prussia, Russia and Sweden, 9 June 1815, The Consolidated Treaty Series, [hereinafter CTS], ed. Clive Parry (Dobbs Ferry, New York, 1969-1981), vol. 64, 453-493; Krystyna Marek, “Contribution à l’étude de l’histoire du traité multilatéral,” in Festschrift für Rudolf Bindschedler (Berne, 1980), 17-39; Paul Reuter, Introduction au droit des traités (Paris, 1972), 14.

37.  CTS, vols. 27-29; H.G. Pitt, “The Pacification of Utrecht,” in The New Cambridge Modern History, vol. 6: The Rise of Great Britain and Russia, 1688-1715/25, ed. J. S. Bromley (Cambridge, 1970), 446-479.

38.  Quoted by Manley O. Hudson, International Tribunals: Past and Future (Washington, 1944), 109; Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, signed at Geneva, 22 August 1864, in CTS, vol. 129:361-367; USA accession 1882.

39.  Jennings, Progress of International Law, 27; Paul C. Szasz, “General Law-Making Processes,” in United Nations Legal Order, ed. Oscar Schachter and Christopher C. Joyner (Cambridge, 1995), vol. 1:35-108, at 40: “At the beginning of the modern era of international law, at the time that the League of Nations was founded, there were only a handful of significant multilateral treaties that could be characterized as ‘law-making’.”

40.  D.P. O’Connell, The Influence of Law on Sea Power (Manchester, 1975), 19; Georg Schwarzenberger, “International Law in Early English Practice,” British Yearbook of International Law 1948, 52-90, at 78-80; for “free ships, free goods,” see Mar. 2, 1877, Commons, Parl. Deb., 3^rd ser., vol. 232:1262-1343; Declaration respecting Maritime Law between Austria, France, Great Britain, Prussia, Russia, Sardinia and Turkey, signed at Paris, 16 April 1856, in CTS, vol. 115:1-3, Article 2: “Le pavillon neutre couvre la marchandise ennemie, à l’exception de la contrebande de guerre.”

41.  Lawrence’s Wheaton, 736-819; Wheaton said the 1713 Utrecht Treaty established “free ships free goods” as the inter se rule for Britain, France and Holland until “swept away from the European code of public law” by the 1792 war with Revolutionary France, see Enquiry into the Validity of the British Claim to a Right of Visitation and Search of American Vessels Suspected to be Engaged in the African Slave-Trade (Philadelphia, 1842), 22.

42. Charles Jenkinson, 1^st Lord Liverpool, Discourse on the Conduct of the Government of Great Britain in Respect to Neutral Nations, Written in the Year 1758 (Edinburgh, 1837), 1801 preface, 5; “free ships free goods”refuted by John Charles Herries, in Gentz, On the State of Europe, May 1802 translator’s preface, viii-xciii, and 366, n. A.

43.  Reddie, Inquiries, 234-236, 259.

44.  Sir William Vernon Harcourt, Letters by Historicus on Some Questions of International Law (London-Cambridge, 1863), 77-78; for a successful argument that treaties are the “exceptional” law of nations, see Sir Hersch Lauterpacht, The Development of International Law by the International Court, 2^nd ed. (London, 1958), 377-379.

45.  James Lorimer, The Institutes of the Law of Nations, vol. 1 (Edinburgh-London, 1883), 37.

46.  Thomas Joseph Lawrence, Essays on Some Disputed Questions of International Law (Cambridge, 1884), 25; for the 19^th century debate on the treaty as source of international law, see Sir Travers Twiss, The Law of Nations, 2^nd ed. (Oxford, 1884), 164-174.

47.  Thomas Joseph Lawrence, The Principles of International Law, 3^rd ed. (Boston, 1905), § 68: 97.

48.  Ibid., § 68:100; for Russian jurists, see G.I. Tunkin, Theory of International Law, trans. William E. Butler (Cambridge, Mass., 1974), 91-93.

49.  William Edward Hall, A Treatise on International Law, 4^th ed. (Oxford, 1895), 7-13.

50.  John Westlake, International Law, Part 1: Peace, 2nd ed. (Cambridge, 1910), 14, 16, and Chapters on the Principles of International Law (Cambridge, 1894), 83.