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morality, as involving so many reciprocal rights, and obligations; and from their being thereby reduced to the necessity, in the course of their discussions, of dividing rights into perfect, and imperfect, viz., rights, which may be enforced consistently with justice and general expediency, and rights, which cannot be so enforced, and which are consequently, no rights at all. As this mode of proceeding, which was adopted, and followed for a long period, was adverse to the correct cultivation, as a science, of the internal private law of states, or individual jurisprudence, so it likewise occasioned obscurity, in the cultivation, as a science, of the external law of states, or international law. But about the middle, and towards the close of last century, more correct and precise views came to be entertained by jurists, with regard to the proper sphere of coercive law, generally, as distinct from ethics,—of legality, as distinct from morality. And, while the rules of morality, or præcepta virtutum, continued to be held applicable to the assemblages of men, called nations, as well as to individual men, the jus gentium came to be held, as embracing only those rules of reciprocal conduct,—those juridical relations of states, those correlative rights and obligations, which have been called perfect, and which admit of being enforced, consistently with justice, reciprocity, and general expediency
In order, therefore, to avoid the obscurity, arising from the confused nomenclature, or rather inaccurate arrangement, just alluded to, we shall exclude from our inquiries, what may be called the ethics, or morality, of nations; and consider international law, as the collection of the rules, which regulate, or ought to regulate,
the external intercourse, with each other, of separate, and independent states. In other words we shall investigate only the legal, or juridical relations, which exist between, or among, the societies or assemblages of men, occupying particular portions of this earth, called nations; involving reciprocal rights and obligations, which are susceptible of being enforced, consistently, with justice, and general expediency, or the welfare of mankind, so far as practically attainable. And, under the more appropriate appellation of international law, here employed, as being now in general use, it will be observed, are comprehended, no part of the internal law of a state ; neither the private law for the regulation of the conduct of the individuals, of whom the state is com. posed, in relation to each other, or jurisprudence; nor the public, or constitutional law, of states.
At the outset, also, and for the sake of perspicuity, and the more distinct understanding of the immediately following historical sketch, it may be proper, so far to anticipate, our more detailed discussion, of the different kinds, or sources, of international law, as to premise, that we hold that law, to be of only two kinds, natural, and positive. By the natural law of nations, we do not understand any law, founded upon, or derived from, an imaginary, and fictitious state of nature, antecedent to the social union, and which never had any existence ; but as arising from the actual position on the surface of this earth, of the associated bodies of men, called nations, from the means by which they are destined to earn their subsistence, and to procure the various comforts and conveniences of life, from the intercourse, which they are enabled to have with each other, and
generally from the corporeal and mental constitution of mankind, and from the circumstances in which they are placed in this world, as ascertained by observation, and by the history of the species in past ages. By the positive law of nations, again, we understand, that law, or branch of law, which does not arise immediately, and solely, from the very constitution of mankind, as congregated into communities, and scattered over, and occupying various portions of this globe, but as recognised, and established, by the acts of men, either by express conventions and treaties between, or among, nations, or by long prevailing customs and usages, and habits of action, indicating the consent, and adoption by nations, of such rules of conduct ; thus distinguishing positive international law, into conventional, and consuetudinary.
Having premised these explanatory remarks, and, reserving for more detailed discussion, the different kinds, the sphere, the sources, the origin and progress, and the arrangement of the component parts, of international law, we shall first inquire, how that law has been cultivated as a science in ancient, and in modern times. And in this inquiry, we cannot do better, especially with reference to Germany, (where this department of law has been more cultivated, than in any other country,) than avail ourselves largely, not only of the concise statement of historical facts, but of the acute and impartial criticism, of Baron von Ompteda.
HOW CULTIVATED IN ANCIENT TIMES.
Of International Law in Ancient Times.
The curiosity of jurists, has searched in vain, the records of antiquity which have been preserved, for evidence of the scientific cultivation of international law. In their conduct to other nations, the Israelites were directed by special revelations of the Divine will. And with regard to the early nations of antiquity, who first formed themselves into large states, such as the Assyrians, Babylonians, Medes, Persians, and Indians, we have no authentic records of their international usages, in peace or war.
Among the Greeks, who viewed all the rest of the human race, as barbarians, we are not to look for the recognition of any very equitable measures for the regulation of their intercourse with other nations. Among themselves, however, they presented a number of small, separate, independent communities, connected by one common race or origin, and language ; a state of matters favourable for the growth of international law. Accordingly they seem to have made some progress in the recognition of the principles of that law.
Thus, in the time of Themistocles, the Grecian states appear, to have been in the habit of sending ambassadors to each other, and of appealing to a common law of nations, according to which, one state could not prevent another from fortifying its towns with walls. Their philosophers too, such as Plato and Aristotle, incidentally notice the existence of the rights and obligations of nations, towards each other ; without the observance of which, no state could long maintain itself. But even Aristotle, although he arranges the sciences, and even the different departments of the science of law, does not appear to allude to such a science, as treating of the disputes, and contests of nations, with each other, or of their reciprocal legal rights and obligations. And the fact seems to be, that the Grecian states recognised these principles of international law, which related to their wars, their leagues, the despatching of their own, and the reception, and treatment, of foreign ambassadors; but chiefly, if not entirely, from the impulse of their feelings, of the justice of these rules, and of the necessity of their observance, for the welfare of their own states, without arranging them into any systematic form.
In the earlier, and better times, of the Roman State, the fides publica was maintained, and many of the rules of international law were in observance. During the times of their kings, the collegium fecialium was instituted ; and the duties of the feciales were to watch over the public interests of the state, to give their advice in whatever concerned peace or war, alliances, the treatment of foreign ambassadors, and other state transactions, with foreign nations. They were also sent as heralds, and ambassadors, to other nations on various matters of importance, during war, as well as in peace; they pronounced upon the justice of wars to be undertaken; they were in the practice of committing to writing their modes of proceeding, to serve as guides for the determination of future cases; and there thus