which the natural law does not furnish the same rule of decision between state and state as would be applicable between individual and individual. It is the art of accommodating this application to the different nature of the subjects in a just manner according to right reason which constitutes the law of nations a particular science. This application of the natural law to regulate the conduct of nations in their intercourse with each other constitutes what both Wolf and Vattel term the necessary law of nations. It is necessary, because nations are absolutely bound to observe it. The precepts of the natural law are equally binding upon states as upon individuals, since states are composed of men, and since the natural law binds all men in whatever relation they may stand to each. other. This is the law which Grotius and his followers call the internal law of nations, as it is obligatory upon nations in point of conscience. Others term it the natural law of nations. This law is immutable, as it consists in the application to states of the natural law, which is itself immutable, being founded on the nature of things and especially on the nature of man. This law being immutable, and the law which it imposes necessary and indispensable, nations can neither make any changes in it by their conventions, dispense with it in their own conduct, nor reciprocally release each other from the observance of it.v ▾ Droit des Gens, Préliminaires, §§ vi. vii. viii. ix. These definitions call to mind that splendid fragment of Cicero, De Republica, so often quoted, in which he describes the attributes of the natural law. "Est quidem vera lex, recta ratio naturæ congruens diffusa in omnes, constans, sempiterna. * * Huic legi neque abrogari fas est, Nec vero Neque est neque derogari ex hac aliquid licet, neque tota abrogari potest. aut per senatum, aut per populum, solvi hac lege possumus. quærendus explanator aut interpres ejus alius. Nec erit alia lex Romæ alia Athenis, alia nunc, alia posthac, sed et omnes gentes et omni tempore una lex et sempiterna et immortalis continebit, unusque erit communis This chain of definitions, propositions, and corollaries might suggest more than one objection, if our present object were not rather to state, than to criticise the fundamental principles on which the obligation of international law is rested by Vattel and his master. The former has himself anticipated one objection to his doctrine that states cannot change the necessary law of nations by their conventions with each other. This objection is, that it would be inconsistent with the liberty and independence of a nation. to allow to others the right of determining whether its conduct was, or was not, conformable to the necessary law of nations. He obviates the objection by a distinction which pronounces treaties made in contravention of the necessary law of nations to be invalid according to the internal law, or that of conscience, at the same time that they may be valid by the external law: states being often obliged to acquiesce in such deviations from the former law in cases. where they do not affect their perfect rights. W From this distinction of Vattel flows what Wolf had denominated the voluntary law of nations, (jus gentium voluntarium,) to which term his disciple assents, although he differs from Wolf as to the manner of establishing its obli gation. He however agrees with Wolf in considering the voluntary law of nations as a positive law derived from the presumed consent of nations to consider each other as perfectly free, independent, and equal, each being the judge of its own actions, and responsible to no superior but the supreme ruler of the universe. Besides this voluntary law of nations, these writers enumerate two other species of international law. These are: quasi magister et imperator omnium Deus. Ille legis hujus inventor, disceptator, lator, cui qui non parebit ipse se fugiet et naturam hominis aspernabitur, atque hoc ipso luet maximas pænas etiam si cætera supplicia quæ putantur effugerit." (Fragm. lib. iii. de Repub.) w Droit des Gens, Préliminaires, § ix. 1. The conventional law of nations, resulting from compacts between particular states. As a treaty binds only the contracting parties, it is evident that the conventional law of nations, is not a universal, but a particular law. 2. The customary law of nations, resulting from usage between particular nations. It is not universal, but binding upon those states only which have given their tacit consent to it. Vattel concludes that these three species of international law, the voluntary, the conventional, and the customary, compose together the positive law of nations. For they proceed from the will of nations; (or in the words of Wolf,) "the voluntary, from their presumed consent; the conventional, from their express consent; and the customary, from their tacit consent." It is almost superfluous to point out the confusion in this enumeration of the different species of international law, which might easily have been avoided by reserving the expression of voluntary law to designate the genus, including all the rules of international law introduced by positive consent, and divided into the two species of conventional law and customary law, the former being introduced by treaty and the latter by usage between nations.y d. 1755. In the same year (1748) with Vattel's treatise appeared § 6. Montesthe Esprit des Lois, a work so different in character from quieu, b. 1689, that of the public jurists formed in the school of Grotius and Puffendorf, that it has been supposed to have given the first fatal blow to the study of natural jurisprudence which had so long engrossed the attention, not only of the scholars, but the statesmen of Europe. Montesquieu still merits and enjoys the reputation of having invented "the grand idea of connecting jurisprudence with history and philosophy in such a manner as to render them all subservient * Droit des Gens, Préliminaires, § xxvii. Wolf, Proleg. § xxv. y Vattel, Droit des Gens, edit. de M. Pinheiro Ferreira, tom. iii. p. 22. to their mutual illustration." His genius may have been kindled with the touch of emulation by the perusal of Vico, and he unquestionably borrowed many thoughts and illustrations from the works of his other predecessors, Bodin, Gravina, and Machiavelli. But these concessions are not sufficient to detract from the merit to which he is justly entitled, in having diverted political philosophy from barren speculations, and directed it to the study of human nature; not in the history of one or two nations of classic antiquity alone, but in the vast variety of races dispersed over the many-peopled globe, with their correspondent diversities of manners, laws, and religion. The general scope of his work did not embrace the subject of those usages which regulate the mutual intercourse of independent societies of men; but he has deduced, in a single pregnant passage, the peculiar law of nations prevailing among different races from their peculiar moral and physical circumstances, in the same deep philosophical spirit with which he traces the origin and history of the civil laws of different nations. "Le droit des gens est naturellement fondé sur ce prin cipe, que les diverses nations doivent se faire dans la paix le plus de bien, et dans la guerre le moins de mal qu'il est possible, sans nuire à leurs véritables intérêts. L'object de la guerre, c'est la victoire : celui de la victoire la conquête ; celui de la conquête la conservation. De ce principe et du précédent doivent deriver toutes les lois qui forment le droit des gens." After thus stating the principles on which the law of nations ought to be founded, he proceeds: "Toutes les nations ont un droit des gens; les Iroquois D. Stewart, Preliminary Dissertation on the Progress of Metaphysical and Moral Philosophy, p. 94. a It is difficult to suppose Montesquieu to have been ignorant of the Scienza nuova, (which the Italians reproach him with not referring to,) since it was published at Naples in 1725, thirteen years before the Esprit des Lois. Ils en même, qui mangent leurs prisonniers, en ont un. The most distinguished public jurist of this period was Bynkershoek, to whose writings we have already so frequently had occasion to refer as bearing testimony to the usages and opinions of the period preceding the peace of Utrecht respecting the maritime law of nations. The earliest of his published writings, the treatise on the sovereignty of the seas, De Dominio Maris, also made its appearance during that period, having been published in 1702. But the greater part of his works were written and published within the period now under consideration. He was born at Middleburgh, the capital of Zealand in 1673, and received his education at the university of Fra-, neker in Friesland. His scholastic exercises while resident at this seat of learning drew upon him the attention of the celebrated professor of jurisprudence Huberus, who § 7. Bynkershoek, b. 1673, d. 1743. Montesquieu, De l'Esprit des Lois, liv. 1, ch. 3. It is evident from the above passage that Montesquieu considered the law of nations as neither universal nor immutable. So also Grotius states "that the jus gentium acquires its obligatory force from the positive consent of all nations, or at least of several. I say of several, for except the natural law, which is also called the jus gentium, there is no other law which is common to all nations. It often happens, too, that what is the law of nations in one part of the world is not so in another, as we shall show in the proper place in respect to prisoners of war and the jus postliminii." (De J. B. ac. P. lib. i. cap. i. § xiv. no. 4.) And Bynkershoek, in the passage before quoted, states that "the law of nations is that which is observed, in accordance with the light of reason, between nations, if not among all nations, at least certainly among the greater part, and those the most civilized." (De Foro Legatorum, cap. iii.) And Leibnitz, speaking of the voluntary law of nations introduced by the tacit consent of nations, says: "Neque vero necesse est, ut sit omnium gentium vel omnium temporum, cum in multis arbitrer aliud Indis aliud Europæis placere, et apud nos ipsos sæculorum decursu mutari, quod vel hoc ipsum opus indicare potest." (Cod. Jur. Gent. Diplomat. prœm.) |