thoroughly discussed of all the uniform acts. It will be a long time before all legislatures get around to the Annulment and Divorce Act.

Providing for annulment jurisdiction where the complaining party lives has great advantages over compelling him to go to the place where the marriage was created. It is expedient, convenient, certain. Why would not the best way be to drop the doctrine of nullity, with its relation back and bastardizing of innocent children and otherwise ignoring the existence of a fact, and include the common causes of annulment under divorce? The state where the party lives can then say that the marriage is at an end. While the law requiring recognition of such a decree is unfortunately somewhat tangled, it probably is not as bad at its worst as what we may expect in the recognition of nullity decrees.

STATE UNIVERSITY OF IOWA.

Herbert F. Goodrich.

INTERNATIONAL TRIBUNALS IN THE LIGHT OF THE HISTORY OF LAW

"WITH

ITH law shall our land be built up and settled, and with lawlessness wasted and spoiled." These words of Njal, the Icelandic lawgiver of the tenth century, might well come from the mouth of a twentieth-century advocate of international union. In those days, as in these, the problem was to put an end to fighting; only now the field is the whole world, and the fighting between nations.

With law courts newly established and of doubtful powers, with private warfare everywhere prevalent, the desire of every wise man among that primitive people was not so much that he or his neighbor should get their rights, as that the land should not be despoiled. And in the long run Njal prevailed. There were failures of the law; Njal himself was burnt in his own house for a blood feud. But his death was atoned for according to law, and the slayers banished. The popular demand was for more law, more courts, and stronger ones; gradually private warfare ceased, and the land was built up. A similar evolution can be discerned in the history of many countries, and is still going on wherever civilization is developing.2

As the establishment of law courts is usually one of the first steps in the organization of national life, because the most imperatively called for, so the feature in the various plans for a league of nations, which makes the most urgent appeal, is the attempt to set up some tribunal to try disputes between states.

Most of the objections now made to international tribunals were applicable to courts of law when they first were set up in primitive communities. Some of the more important of them are as follows:

1 THE STORY OF BURNT NJAL (transl. by G. W. Dasent), 222.

2 In a sketch dealing only with well-known facts, it has not seemed useful to give many references. Conclusions common to several authors have been stated without acknowledgment, even when the language of one of them has to some extent been borrowed.

3 BRYCE, STUDIES IN HISTORY AND JURISPRUDENCE, 281.

I. Lack of power in the league to prevent nations from making war without resorting to its tribunals, or from disregarding their decrees.

II. Difficulty in getting a fair trial.

III. Lack of principles on which to decide disputes.

IV. The impossibility of submitting what are commonly called questions of "honor or vital interest."

I

Among the many plans for a league, some have attributed to it power both to compel its members to submit their disputes, and to enforce obedience to the decisions of the tribunals. Others have attempted only to give the league the former power, leaving the enforcement of the decisions to public opinion or the voluntary intervention of other nations. Others again do not authorize the use of military strength in any case, but rely on the operation of moral and economic forces. The critics of these plans argue that no league can stop war unless it wields an overwhelming physical force, and that under none of these schemes would the league prove able to do so. If the power to enforce decrees were given in theory, it could not, they say, be exercised in fact.

But here a glance at the history of legal institutions is instructive. Most of us live in surroundings so far removed from the primitive that it is hard for us to realize that courts of law flourished, and dealt with a multitude of cases in a manner satisfactory to the people, when their power of compelling obedience was so imperfect as sometimes to touch the vanishing point. In many early legal systems the court had little or no power either of obliging the parties to submit to its jurisdiction, or of enforcing the acceptance of its decrees; and whatever the powers attributed to the court, they were frequently defied with success, not only by evasion, but by force of arms.

To prevent immediate bloodshed, by starting some sort of litigation as a substitute, and then to put pressure on the parties to

The condition of all law in primitive communities resembled that of international law at the present day. They are both examples of inchoate law, in process of emerging from the state of mere custom or ethical sentiment, and not yet fully effective. W. J. BROWN, AUSTINIAN THEORY OF LAW, § 157. GRAY, NATURE AND SOURCES OF THE LAW, 88 285, 287.

come to an agreement, was all that was at first attempted. The whole process was founded on voluntary submission and ended in voluntary agreement; the pressure was that of public opinion.5 These experiments succeeded only imperfectly in the beginning; but they succeeded more and more; and as time went on the courts acquired greater powers.

If the power to prevent resort to violence in the first place was very weak, the ability to enforce decrees was in most cases entirely absent. There was no sheriff, no police force. The power of the members of the community to enforce obedience stood in the background; they seldom acted. Even where there was a king, his aid in carrying out judgments was not readily obtained. Among the Franks, for instance, judgment in certain cases was never enforced, unless the parties had agreed that it should be, or a special petition was made to the king."

The principal method by which the community acted was outlawry. In Iceland the declaration of outlawry ran thus: “He ought to be made a guilty man, an outlaw, not to be fed, not to be forwarded, not to be helped or harboured in any need." 7 The penalties denounced against the culprit are of the sort now called "economic." So was the confiscation of goods which he also suffered. He was not directly threatened with force; though the fact that any person who slew him could not be prosecuted put him in a dangerous position. In Iceland this decree of outlawry appears to have been the only means of enforcing obedience to the court.8 In practice it was an extremely efficient means; but it was an indirect one.9

In much more highly organized states, after legal methods of enforcement were provided, powerful defendants ignored judgments with impunity. The records of the Court of the Star Chamber show that the repeated decrees of the courts were defied in parts of England as late as the end of the reign of Henry the Seventh.10

5 Pollock, First Book of JurISPRUDENCE, 3 ed., 24. POLLOCK, EXPANSION of THE COMMON LAW, 145. MAINE, EARLY HISTORY OF INSTITUTIONS, 38-41. On the power of public opinion in an imperfectly organized community, see JENKS, LAW AND POLITICS IN THE MIDDLE AGES, 297.

6 JENKS, HISTORY OF ENGLISH LAW, 9. MAINE, INSTITUTIONS, 275.

8 BRYCE, STUDIES IN HISTORY AND JURISPRUDENCE, 281.

9 I POLLOCK AND MAITLAND, HISTORY OF ENGLISH LAW, 26.

10 SELDEN SOCIETY, CASES IN THE STAR CHAMBER, pref., 61, 90.

Not for a long time could the courts prevent private warfare. In England, and all over Europe, it persisted through the Middle Ages. The law had to compromise with the deep rooted feeling in favor of settling disputes with the sword. Trial by battle was adopted as a legal procedure; duelling flourished more or less openly. The former was not legally abolished in England until 1819, and is said to have been practiced in the American colonies." Yet even while the fighting continued, the courts served their purpose in preventing more widespread bloodshed. The fact that the law was often defied, as it is to-day in semicivilized regions, did not prevent its being effective; in the main the law held its course and prevailed. In Iceland, as a direct result of Njal's reforms, in the constitution and procedure of the courts, they became so much more effective that soon the right to decide one's disputes by.combat, which popular feeling had forced the courts to recognize, was formally abolished.12

In short, the repression of private warfare was there and everywhere gradual, but met with considerable success from the first establishment of the courts, and more and more as they grew stronger. In all probability, war between nations will likewise be repressed only gradually; international tribunals will not for a long time, if ever, be completely successful in preventing war. Yet that may not prevent their effecting their purpose in great and everincreasing measure.

II

The difficulty of obtaining a fair trial is another objection frequently made to international tribunals. It is said that nations technically neutral are apt to be more favorably inclined toward some countries than toward others, or to be in fear of some powerful neighbor, so that their representatives are likely to be controlled by influences in favor of one side. It is also said that the members of the courts, as well as the advocates, will be persons trained in diplomacy, who will take narrow views of international law, and connive at trickery in the conduct of litigation.

This sort of argument proves too much. We all know how far

11 NEILSON, TRIAL BY COMBAT, 36, 328. LEA, SUPERSTITION AND FORCE, 205-16.

12 BURNT NJAL, pref., 158. CONYBEARE, THE PLACE OF ICELAND IN THE HISTORY OF EUROPEAN INSTITUTIONS, 61.