3. The usages thus established among the greater part of nations, especially the most powerful, are easily adopted and imitated by the rest.

4. The frequent appeals by the European powers to the customary law of civilized nations give to it an obligatory force, which dispenses with the necessity of seeking for the proof of the introduction of the particular usage in ques

tion.

5. Treaties, which are binding on the contracting parties only, often serve as a model for other treaties to be concluded with other powers, and the habit of concluding treaties containing certain stipulations thus insensibly grows up. It also sometimes happens that what is stipulated, by treaty, between certain powers, is adopted, by usage, between others; so that it forms a conventional law for the former, and a customary law for the latter.

By thus collecting the principles most generally followed by the greater part of European nations, either in virtue of special compacts, express or implied, identical or analogous, or in virtue of usages of the like nature, we may construct a complete theory of the general, positive, modern, and practical European law of nations. There is no universal positive law of nations, binding on all nations, of whatever race, or religion, or degree of culture. For though the United States of America, planted in another hemisphere, have adopted the European law of nations— yet the Ottomans, inhabiting the same quarter of the globe, remain still, in many respects, strangers to the international law which prevails between the states of Christendom. This law has gradually grown up with the progress of Christianity and civilization, commerce and colonization, the multiplication of alliances and extension of diplomatic relations, the establishment of the balance of power, finally all those causes which have jointly contributed to form that great society of nations now existing in Europe. The European law of nations has varied at different epochs. Some of its principles may be traced back to the peculiar institu

§ 21. Bentham, b. 1749.

tions and manners of the middle age. For the origin of others we must look to the era of the Reformation and the reign of Henry IV in France. But in general the principal epoch of the modern law of nations dates from the peace of Westphalia; since which that of Utrecht, confirming the political system of Europe, has given new strength to the positive law of nations.a

The fragments of an essay on international law by Jeremy d. 1832. Pro- Bentham, recently published from MSS. bearing date from ject of Per- 1786 to 1789, deserve to be mentioned in this connection, petual Peace. as bearing the stamp of the same original and vigorous mind which marks the more complete works of that great law-reformer. These fragments consist of four short essays-1. On the objects of international law. 2. On the subjects, or personal extent of the dominion of the laws of any state. 3. On war, considered in respect to its causes and consequences. 4. A plan for an universal and perpetual peace.

From the extreme condensation of thought and conciseness of language in these essays, written in their author's best days, before the original simplicity of style, which marks his earlier works, and which he ever preserved in conversation, degenerated in his written compositions into an affected, laboured, and obscure phraseology, clouding his thoughts, and deterring the reader from wading through their long and intricate constructions, and almost unintelligible terminology; it becomes very difficult to give, within

Martens, Primæ linia Juris Gentium, etc. Proleg. §§ 1-5. Précis du Droit des Gens, etc, Introduction, §§ 1-10.

Martens was followed by another German writer of considerable merit, Günther, the first volume of whose work on the "European Law of Nations in Time of Peace, according to Reason, Treaties, Usage, and Analogy," appeared in 1787. It was followed by a second in 1792, but the author's intention of completing his design with an essay on the law of nations in time of war was never fulfilled.

Europaisches Volkerrecht in Friedenszeiten nach Vernunft, Verträgen, und Herkommen, 2 Theile, 8vo. Altenburg, 1787, 1792.

any reasonable limits, any thing like a clear analysis of the principles deemed by the author essential to the construction of a universal international code. In the first essay he sets out with inquiring: "If a citizen of the world had to prepare such a code, what would he propose to himself as his object?" He answers, that "It would be the common and equal utility of all nations: this would be his inclination and his duty." And inquires further, "Would, or not, the duty of a particular legislator, acting for one particular nation, be the same with that of a citizen of the world?" He concludes that whatever answer may be given to this last question, however small may be the regard which it might be wished the legislator should have for the common utility, it will not be the less necessary that he should un derstand it. "This will be necessary for him on two accounts in the first place, that he may follow this object, in so far as his own particular object is comprised in it; second, that he may frame, according to it, the expectations he ought to entertain, the demands he ought to make upon other nations. For the line of common utility once drawn, this would be the direction towards which the conduct of all nations would tend: in which their common efforts would find least resistance-in which they would operate with the greatest force, and in which the equilibrium, once established, would be maintained with the least difficulty."

Our author mentions, as a practical example of the application of this theory, the adoption, by so many nations of the principles of the armed neutrality, proposed by the Empress Catherine in 1780. How formidable soever might be the initiating power, there was no reason to think that it was fear which operated upon so many nations, together so powerful, and some of them so remote; it must have been the equity of the proposed system, that is to say, its common utility, or, what amounts to the same thing, its apparent utility, which determined their acceptance of it.

He goes on to observe, that "it is the end which determines the means. The end of the conduct which a sovereign ought to observe relative to his own subjects, the end of the internal law of a society ought to be the greatest happiness of the society concerned. The end of the conduct a sovereign ought to observe towards other men, what ought it to be, judging by the same principle? Shall it again be said the greatest happiness of his own subjects? Upon this footing, the welfare, the demands of other men, will be as nothing in his eyes: with regard to them, he will have no other object than that of subjecting them to his wishes by all manner of means. He will serve them as he actually serves the beasts, which are used by him as they use the herbs on which they browse-in short, as the ancient Greeks, as the Romans, as all the models of virtue in antiquity, as all the nations with whose history we are acquainted, employed them.

"Yet in proceeding in this career, he cannot fail always to experience a certain resistance-resistance similar in its nature and in its cause, if not always in its certainty and efficacy, to that which individuals ought from the first to experience in a more restricted career; so that, from reiterated experience, states ought either to have set themselves to seek out, or at least would have found their line of least resistance, as individuals of that same society have already found theirs; and this will be the line which represents the greatest and common utility of all nations taken together.

"The point of repose will be that in which all the forces find their equilibrium, from which the greatest difficulty would be found in making them to depart.

"Hence, in order to regulate his proceedings with regard to other nations, a given sovereign has no other means more adapted to attain his own particular end, than the setting before his eyes the general end,—the most extended welfare of all the nations on the earth. So that it happens that this most vast and extended end,-this foreign end-will

appear, so to speak, to govern and to carry with it the principal, the ultimate end; in such manner, that in order to attain to this, there is no method more sure for a sovereign than so to act, as if he had no other object than to attain to the other; in the same manner as in its approach to the sun, a satellite has no other course to pursue than that which is taken by the planet which governs it."

The author therefore suggests that we should suppose this to be the end aimed at by the law, which ought to regulate the conduct of nations in their mutual intercourse. The objects of an international code for any given nation would then be :

1. General utility, in so far as it consists in doing no injury to other nations, saving the regard which is proper to its own well being.

2. General utility, in so far as it consists in doing the greatest possible good to other nations, saving the regard which is proper to its own well being.

3. General utility, in so far as it consists in not receiving any injury from other nations, saving the regard due to the well being of these same nations.

4. General utility, in so far as it consists in such state receiving the greatest possible benefit from all other nations, saving the regard due to the well being of these nations.

"It is to the two former objects that the duties, which the given nation ought to recognize, may be referred. It is to the two latter that the rights it ought to claim may be referred. But if the same rights shall, in its opinion, be violated, in what manner and by what means, shall it seek for satisfaction? There is no other mode but that of war. But war is an evil; it is even the complication of all other evils."

5. The fifth object of an international code would be, to make such arrangements, that the least possible evil may be produced by war, consistently with the attainment of the good which is sought for.