According to this definition, if we could once find out what are the rights and obligations, the moral claims and duties of nations as such, by mere deduction the principles of this science would be settled. But such an abstract form of the science, commanding general assent, neither has appeared, nor is likely to appear. The advantage of separating inter national law in its theoretical form from the positive existing Code depends, not on the possibility of constructing a perfect code according to a true theory, but on the fact, that right views of justice may serve as a touchstone of actual usages and regulations; for in all jural science it is most important to distinguish between the law as it is, and as it ought to be. This same distinction is made by those who discriminate between international law,-the positive admitted law,-and international morality. But the latter term must be objectionable to those at least who make a distinction between morals and jus. The law of nations, both as it is and as it ought to be, does not confine itself within the jural sphere.

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more limited

In a more limited sense international law would be the system of positive rules, by which the nations of Intern. law in a the world regulate their intercourse with one an- sense. other. But in strictness of truth this definition is too broad, for there is no such law recognized as yet through all nations. Neither have the more civilized states of the East agreed with those of Europe, nor the states of antiquity with those of modern times, unless it be in a few provisions, which together would constitute an exceedingly meagre code.

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Coming within narrower limits, we define internationa law to be the aggregate of the rules, which Chris- Actual positive tian states acknowledge, as obligatory in their relations to each other, and to each other's subjects. The rules

intern. law

* Comp. an article attributed to Mr. Senior in Edinburgh Review, No. 156, for April, 1843.

also which they unite to impose on their subjects, respectively, for the treatment of one another, are included here, as being in the end rules of action for the states themselves. Here notice,

ion

1. That as Christian states are now controllers of opinextending beyond among men, their views of law are beginChristendom, ning to spread beyond the bounds of Christendom, as into Turkey and China.

2. That the definition cannot justly be widened to include but not observed the law which governs Christian states in their towards savages. intercourse with savage or half-civilized tribes; or even with nations on a higher level, but lying outside of their forms of civilization. In general, towards such nations, they have acted on the principle that there is no common bond of obligation between them and the other party, observing so much of international law as suited their policy or sense of right at the time. Especially towards savage tribes they have often acted with flagrant selfishness, as if they feared no retribution from a weaker party, or were beyond the reach of public opinion. (Comp. § 136, and § 204.)

3. The rules of action agreed upon by two or more Chris tian states, but not by all, or the most of them, form no part of international law; although they often illustrate it, and often pave the way for the admission of new modifications of it.

4. Nations, it is conceded by all, have obligations towards foreigners, who are not constituent parts of any nation; or, at least, of a nation by which the law of nations is acknowledged. The consideration of the rights, or moral claims of such persons, belongs to international law, not as the system of rules observed between nations, but as involving obligations which all nations, or all Christian nations, acknowledge.

law. Its volun

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The way in which positive international law becomes such, Genesis of intern. shows that it must be progressive and somewhat tary nature. uncertain. Right, as Heffter remarks,* is either quaranteed, under the protection and force of a competent

Völkerrecht, § 2.

power, (as we see it in the state,) or free, that is, the individ ual power or person must protect and preserve it for himself. The law of nations is of this latter kind. First of all, the single state sets up for itself its views of right against other states. If it gives up its isolation, it freely forms in intercourse with other states a common right or law, from which now it can no longer set itself free, without offering up, or at least endangering, its peaceful relations, and even its exist

ence.

Thus a law of nations can grow up only by the consent of the parties to it. It is, therefore, more a product of human freedom than the municipal law of a particular state. Its natural progress is to start from those provisions which are necessary in conducting political and commercial intercourse, while it leaves untouched, for a time, many usages which are contrary to humanity and morality; until, with the advance of civilization, the sway of moral ideas becomes stronger. It grows into a system of tolerable justice and humanity after, perhaps long after, municipal legislation has of later growth worked itself clear of many faults and errors. For although both branches of law have the same foundation of justice, and although a state, like Rome, for example, with an advanced system of internal laws, ought to have its views of international obligations purified; yet, as states have diverse interests and opinions, it takes time before a seeming interest can be given up, even after right is acknowledged to be on the other side; and it takes time to bring the views of nations to a common standard.*

than state law.

A state in the lower grade of civilization, like a savage, becomes conscious of its separate existence in the act of resistance, or of defending that existence. Such self-preservation on the part of the individual arouses, it may be, no better feeling than that of independence and self-reliance; in the state it helps the members to feel their unity and dependence, and the priceless value of the state itself. Hence war is a moral teacher: opposition to external force is an aid to the highest civic virtues. But if this were all there could be no recognition of obligations towards foreigners, no community of nations, in short, no world. These conceptions grow up in man, from the necessity of recognizing rules of intercourse, and intercourse is tself a natural necessity from the physical ordinances of God. Self-protection and

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Why this law arose in Christian states.

The same causes which have enabled Christian states to reach a higher point of civilization than any other, have made them the first to elaborate a system of international law. These causes have been principally, (1.) the high moral standard of the religion which they in common professed, a religion v hich cultivates alike the sentiments of justice and humanity; (2.) the inheritance which came to them of philosophy and legal science from the classical states of antiquity, and especially the system of Roman law; and (3.) a close historical connection since the times of the Roman empire, favoring the spread of common ideas. Thus the same religious and jural views, and a similar historical development, give rise to a community of nations, where it is comparatively easy for common usages to grow up. No such common feeling, but quite the opposite, existed between them and their Mohammedan neighbors; and hence the latter were long shut out from the pale of their international law.

perfect.

Greece and

Rome.

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In other parts and ages of the world laws have grown up, Intern. law else in groups of nations, for the regulation of their where quite im- Conduct to each other. But these have all been partial, and were never constructed into a science. The classic states of antiquity had, at the best, a very simple and imperfect body of such rules and usages. Ambassadors and heralds had a sacred character; truces and treaties were acknowledged to be obligatory; war was usually begun with an open declaration, and, perhaps, with solemn formalities; but when once begun, it was waged with little rule or check. The Greeks were favorably situated Greece. for the development of a Hellenic international law; for, like the Christian states of modern times, they formed a circle of communities, standing at nearly the same

intercourse are thus the two sources of international law; they make it necessary, and the conception in man of justice, of rights and obligations, must follow, because he has a moral nature.

jevel of civilization, and in religion, as well as historical traditions, connected with one another. And, in fact, the rudiments of such a law appear in the course of Greek history. They generally gave quarter, allowed the ransom of prisoners, respected trophies, and consented to truces for the burial of the dead. They acted on the principle of the balance of power against a dangerous and ambitious state belonging to their circle; they had a usage bearing some resemblance to the modern consular system; and they sometimes by treaties or perpetual leagues, as the Amphictyonic, secured the existence of the parties concerned, or even softened the severities of war.* But towards barbarians they acted almost without rule, and among themselves permitted the most flagrant acts of inhumanity.

Rome.

The Romans had less of international law than the Greeks, and were less scrupulous, if we except their observance, in their earlier days, of the fecial rules, which accorded so well with the formality of their religious character. The reason of this appears to be that, after they became masters of Italy, many of the nations they encountered were of another type than their own, and for the most part in decay, or half civilized; not in any respect their equals. Towards such enemies they could act as their convenience dictated.

ing that they had

It has been said, that the Greeks had no international law at all; and the same arguments would deny the No reason for say existence of such a law among the Romans, in no intern. law. their earliest times. There seems to be no sufficient ground for this opinion. Neither nation may have reached an accurate notion of an international law, but they had usages corresponding to those which nations under such a law now ob

* Thus the old Amphictyonic league contemplated an armed intervention for the security of any member threatened with utter ruin by another; and no state belong. ing to the league was to be deprived in war of the use of its fountain water. Æs chines de fals. leg. § 115, Bekk.

A controversy was carried on in regard to the Greeks between Wachsmuth and Heffter, the former affirming the existence of a law of nations among them, the lat ter denying it. Comp. Osenbrüggen de jure belli et pacis (Lips. 1836), p. 4, seq.