Codification, so-called, of international law, has a special importance at this time, because it is necessary in order to enlarge the service rendered by the Permanent Court of International Justice as one of a group of related institutions which taken together promise to facilitate the preservation of peace to a degree never before attained.

It has been customary to take Grotius's book for the starting point of one of the best marked eras in the history of jurisprudence. Any account of the development of theories of justice is likely to begin the modern history of the subject with Grotius, and to put as a classical epoch a period designated as “from Grotius to Kant.” Any account of theories of law is likely to set off a period from the revived study of Roman law in the Italian universities of the twelfth century to Grotius, and another from Grotius to the breaking up of the eighteenth century law-of-nature school. In almost all accounts of the history of the science of law, Grotius stands as marking a turning point.

In the Treaty of Friendship, Commerce and Consular Rights signed with Germany on December 8,1923, the United States inaugurated an important development of its commercial policy in conformity with the Tariff Act of 1922, Section 317 of which directs the President, if “the public interest will be served thereby,” to “specify and declare new or additional duties” upon goods imported from countries that discriminate against the commerce of the United States. Pursuant to this provision the American Government undertook the negotiation of agreements with other countries both to eliminate existing discriminations and to obtain assurances that existing equality of treatment would be maintained. Preparation for the new series of commercial arrangements included a careful scrutiny of the most-favored-nation clause as applied to customs duties.

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.”

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.

The Permanent Court of International Justice, in two of the most exhaustive judgments it has thus far rendered, has recently decided, mainly against the claimant, the bitterly contested case of Mavrommatis (Greece) v. Great Britain (Judgments No. 2 and No. 5). It took two hearings and two decisions to dispose of the case, the first (August 30, 1924) on the question of the court's jurisdiction, asserted by a majority of seven judges to five, and the second (March 6, 1925) on the merits. The majority in favor of the jurisdiction were Judges Loder, Weiss, Nyholm, Altamira, Anzilotti, Huber, and the Greek national judge, Caloyanni. The dissenting judges, each of whom prepared a separate opinion, were Judges Finlay, Moore, de Bustamante, Oda and Pessoa. Under the court's practice, it is not possible to tell which judge or judges wrote the majority opinion; there is some evidence that several judges participated in drafting it. The second judgment practically dismissing the claim on the merits, was nearly unanimous, only Judge Altamira dissenting.