Covenants Without the Sword but at a political solution. Perhaps William Penn's plan for a "European Diet, Parliament or Estates" (1893) is the first suggestion of a Universal Court. But Penn's scheme, too, is on the whole an attempt at a political and not a juristic solution. True, he insists chiefly upon the judicial functions of the Uni versal Parliament he proposes. Evi dently, however, he expected it to de cide questions as a political assembly rather than as a court.1 Jeremy Bentham, to whom we owe the term "international law," was the first (1789) to propose the purely juristic solution—to propose an International Court which was to administer an inter national law. His plan was for "a common court of judicature," whose power "would consist" (1) in reporting its opinions, (2) in causing those opin ions to be circulated in the dominion of each state, (3) after a certain time, in putting the refractory state under the "ban of Europe."2 With the first suggestion of a court arises at once the question of "sanction." Bentham believed the "ban of Europe" would be effective. In the last analysis, no other, or at least no better, sanction is suggested by the present day advo cates of this Court. And yet we have ample historical evidence of its impo tence. This "ban" at once suggests to you, for example, "sacratio," in the beginning of Roman law. If one vio lated the rules of fas he was devoted by the Pontifices to the infernal gods. It was this outlawry, or devotion by sacratio to the infernal gods, which con stituted the penalty in most of those constitutional pacts between the differ ent bodies forming the Roman state, which pass for the early leges of the republic. Indeed, the early statutes soon 'See Darby, International Tribunals, 20. 'Bentham's Works, Bowring'sed., vol. II, 546 et seq.
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added, "if any one acts counter to this statute, 'sacer esto.' ' ' Festus says : "But he is a man devoted to the infernal gods (homo sacer) whom the people have adjudged by reason of wrong-doing, nor is it allowable for him to be sacrificed, but he who kills him shall not be con demned of murder."3 So, likewise, this proposed ban of Europe or ban of the civilized world is not unlike the excommunication and interdict wielded by the mediaeval church. And, indeed, it is not a far-fetched idea to say that during the middle ages such sanction as international law actually had was given to it almost entirely by the great power of the Papacy; or, per haps, I ought to put it that for cen turies the peculiar power of the Pope actually did give international law a real "sanction." Bentham refers to this as a "religious sanction."
But all such sanctions speedily be came brutum fulmen. Sacratio, at first over-severe, came to be obsolete. The interdict and Papal excommunication lost their terrors when the latter came to be put to the test in the case of Luther. Yet such is the sanction which is now to be revived.4 Next after Bentham came the Ameri can peace societies, which have been persistent advocates of such a plan. The first of these societies arose in America in 1814-15. England followed in 1816. Since then they have spread over Europe. At the Hague Conference in 1907, the pacificists were more in evidence and more active than the regular delegates.5 At first the idea of the American Peace Society was political. Its mem3Festus sub voc. "Sacer": Bruns, Fonles Juris Romani Antiqui, 6th ed., vol. II, 41. 'Root, "The Sanction of International Law," 2 Am. Jour. Int. Law, 451, 453; Scott, "The Legal Nature of International Law," 1 Am. Jour. Int. Law, 831, 832, 840, 841. 'See Pradier-Foderfi, Droit International Public, VI, 116, note, and Kliiber (French ed.) Droit des Gens, par. 329, note.
