In late 1917, when the Soviet Government of Russia published various documents from the archives of the Russian Foreign Office, an insistent demand was created throughout the world for the abolition of secret diplomacy. A volume of secret treaties was published in England in 1917 and in the United States in early 1918, and the consequent reaction of public opinion greatly influenced the current statements of the aims of the belligerents. In his address of January 8, 1918, President Wilson put the subject of secret diplomacy at the forefront in the “program of the world's peace” embodied in the Fourteen Points: “Open covenants of peace, openly arrived at, after which there shall be no private international understandings of any kind but diplomacy shall proceed always openly and in the public view.” It has since developed that these words may have been written without a knowledge of the contents of the secret treaties made by Allied Powers during the war; but they were largely responsible for the crystallization of the revulsion which followed the publication of the secret treaties into a determination that the end of the war should signalize the beginning of a new era in the conduct of international relations.

The first two paragraphs of Article 5 of the Covenant of the League of Nations provide:

All matters of procedure at meetings of the Assembly or of the Council, including the appointment of committees to investigate particular matters, shall be regulated by the Assembly or by the Council and may be decided by a majority of the members of the League represented at the meeting.

Since international law is largely based upon custom, prevalent custom is more likely to evidence the real change than are formal documents. No more striking example of this effect of growing sentiment upon law can be cited than the successive pronouncements of John Marshall regarding the status of enemy property on land in time of war.1 In 1796 he appeared for the State of Virginia in the case of Ware v. Hylton (3 Dallas, 199), and argued that by the law of nations confiscation was justifiable. In 1814, deciding from the bench of the Supreme Court the case of Brown v. United States (8 Cranch, 110), he declared that though the old rigid rule would allow confiscation, prevailing current practice forbade and no nation could sanction confiscation “without obloquy.” In the Percheman case (7 Peters, 51), twenty years later, he announced that the confiscation of private property was contrary to the modern usage of nations “which has become law.”

As the Permanent Court of International Justice completes the third year of its activities, its r61e in the international life of our time and the prospect for its cumulating contribution to international law begin to stand out more clearly. During 1920, while its Statute was being drafted, the general conception as to its functions was more or less nebulous. In 1921, while the protocol promulgating the Statute was being ratified and while the judges were being chosen, doubts were still being entertained as to the need for the court and the opportunities which would be permitted to it. In 1922, the organization of the court, the promulgation of the rules of procedure and the handing down of three advisory opinions served to beget confidence. The year 1923 was such a busy one for the court, and the satisfaction with its five advisory opinions and its judgment in the Wimbledon case was so general that lawyers began to foresee great activities in store for it, and foreign offices began to count its existence a factor in current international affairs.

The idea of obligation is of essential importance in any legal system: it is, in a sense, the sanction of law itself. But it is only in the last decade or so that the idea of the responsibility of states in international law has been detached from a subordinate or incidental discussion in connection with the rights of states, with treaties, or elsewhere, and given its proper position as an institute of international law. Only in the latest editions of texts has the legal significance of the word been recognized to such an extent that it is given a separate chapter treatment, upon a footing similar to that of equality, independence, or other accepted attributes of the state. As usual, more interest has been devoted to rights than to duties. Monographic treatment is very limited; and there is as yet no complete treatise. There are, of course, innumerable discussions of particular phases, especially in the case of injuries arising from civil war, but also for federal states, the acts of agents, the theories of risk and fault, et cetera.

The growth of the treaty-making power in Canada is a very interesting subject, but any attempt to state in a legal way the source of this power or to give a clear, juridicial analysis of the international and inter-Empire status of Canada is extremely difficult.

The text of the jurist Marcianus, preserved in the Digest of Justinian, is the first formal pronouncement in recorded legal theory on the legal status of the sea and on the right of men to use the sea and its products. It is stated that the sea and its coasts are common to all men. Since Marcianus lived in the early years of the second century of the Christian era, it follows that this doctrine was known in a written form at least as early as the beginning of the second century. Since, further, Marcianus belonged to that class of jurists the official pronouncements of which were recognized as being statements of the law, it follows that the doctrine of the common right of all men to a free use of the sea was a law of the Roman Empire at the beginning of the second century, although this law was not put in a codified form until the sixth century.

Mr. J. Holmes had told us that the object of the study of law is to make the prophecies of precedent more precise, to generalize them into a thoroughly connected system; that that object is “the prediction of the incidence of the public force through the instrumentalities of courts.” The framers of our constitutional jurisprudence were clearly concerned with the incidence of just principles upon governmental powers. Kent declares that when the United States ceased to be a part of the British Empire, and assumed the character of an independent nation, they became subject to that system of rules, which reason, morality and custom had established among the civilized nations of Europe, as their public law. It was recognized that the law of nations prescribed “what one nation may do without giving just cause for war, and what of consequence, another may or ought to permit without being considered as having sacrificed its honor, its dignity, or its independence.” Story avers that the general law of nations is “equally obligatory upon all sovereigns and all states." It is "the umpire and security of their rights and peace,” declared Jefferson. It is a law which “binds all nations,” declared the Supreme Court of the United States in 1794.

In the October,1924, number of this Journal the writer examined the changes in the conception of war since the middle ages with the conclusion that under present international law “acts of war” are illegal unless committed in time of war or other extraordinary necessity but the transition from a state of peace to a “state of war” is neither legal nor illegal. A state of war is regarded as an event, the origin of which is outside of international law although that law prescribes rules for its conduct differing from those which prevail in time of peace. The reason for this conception, different from that of antiquity and the middle ages was found in the complexity of the causes of war in the present state of international relations, in the difficulty of locating responsibility in the present regime of constitutional government, and in the prevalence of the scientific habit of attributing occurrences to natural causes rather than to design. It was recalled, however, that the problem of eliminating war has gained in importance while the possibility of solving it through the application of law has improved with the development of jural science. Thus efforts have been made to eliminate war(1) by defining responsibility for bringing on a state of war,(2) by defining justifiable self-defense, and(3) by providing sanctions for enforcement.

The relations existing in the various states of the world, and particularly in the various states of Europe and America, between international law and municipal law, or, as it might better be called, national law, have been made the subject of several studies in recent years. In view of the probable necessity for many years yet to come of relying for the development and application of international law upon national legislatures, courts, and executive or administrative officials, in the absence of any adequate system of international legislatures, courts, and executive officials, this borderland between international law and national law deserves the most thorough attention. But the attention given to the way in which international law is enforced by national courts, the way in which international treaties are supplemented by national statutes, and to other similar phases of the general subject, has led to some neglect of the central question in the problem, or, at least, has not afforded an adequate answer to that question. It is the purpose of this paper to state this question as it has arisen in cases tried in American courts, to attempt to find the proper solution for it, and to compare that solution with ruling case law on the point in the United States.