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PART I.

OF THE LAW OF NATIONS.

LECTURE I.

OF THE FOUNDATION AND HISTORY OF THE LAW OF NATIONS.

WHEN the United States ceased to be a part of the British empire, and assumed the character of an independent nation, they became subject to that system of rules which reason, morality and custom had established among the civilized nations of Europe, as their public law. During the war of the American revolution, congress claimed cognizance of all matters arising upon the law of nations, and they professed obedience to that law, "according to the general usages of Europe." By this law we are to understand that code of public instruction, which defines the rights and prescribes the duties of nations, in their intercourse with each other. The faithful observance of this law is essential to national character, and to the happiness of mankind. According to the observation of Montesquieu, it is founded on the principle, that different nations ought to do each other as much good in peace, and as *little harm in war, as possible, *2

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Ordinance of the 4th December, 1781, relative to maritime captures. Journals of Congress, vol vii. 185. The English judges have frequently declared that the law of nations was part of the common law of England. Triquet v. Bath, 3 Burr. 1478. Heathfield v. Chilton, 4 Ib. 2015; and it is well settled that the common law of England, so far as it may be consistent with the constitutions of this country, and remains unaltered by statute, is an essential part of American jurisprudence. Vide infra, pp. 342. 472, 473.

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Natural and positive Law

without injury to their true interests. But as the precepts of this code are not defined in every case with perfect precision, and as nations have no common civil tribunal to resort to for the interpretation and execution of this law, it is often very difficult to ascertain, to the satisfaction of the parties concerned, its precise injunctions and extent; and a still greater difficulty is the want of adequate pacific means to secure obedience to its dictates.

There has been a difference of opinion among writers, conof Nations, cerning the foundation of the law of nations. It has been considered by some as a mere system of positive institutions, founded upon consent and usage; while others have insisted that it was essentially the same as the law of nature, applied to the conduct of nations, in the character of moral persons, susceptible of obligations and laws. We are not to adopt either of these theories as exclusively true. The most useful and practical part of the law of nations is, no doubt, instituted or positive law, founded on usage, consent and agreement. But it would be improper to separate this law entirely from natural jurisprudence, and not to consider it as deriving much of its force and dignity from the same principles of right reason, the same views of the nature and constitution of man, and the same sanction of Divine revelation, as those from which the science of morality is deduced. There is a natural and a positive law of nations. By the former, every state, in its relations with other states, is bound to conduct itself with justice, good faith and benevolence; and this application of the law of nature has been called by Vattel the necessary law of nations, because nations are bound by the law of nature to observe it; and it is termed by others the internal law of nations, because it is obligatory upon them in point of conscience."

* Vattel, Prelim. sec. 7. Omnis autem in re consensio omnium gentium Lex naturæ putanda est. Cic. Tusc. Disp. 1. 13. Heineccius, in his Elementa Juris Naturæ et Gentium, b. 1. ch. 1 and 3, (and which is very excellent as to the first branch of the subject,) and all the other great masters of ethical and national jurisprudence, place the foundation of the law of nature in the will of God, discoverable by right reason, and aided by Divine revelation; and its principles, when applicable, apply with equal obligation to individuals and to nations. A recent French writer (M. Victor Foucher) divides the law of nations into two branches. (1.) Public international law, which regulates the political relation of nation to nation;

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We ought not, therefore, to separate the science of public Moral oblaw from that of ethics, nor encourage the dangerous *suggestion, that governments are not so strictly bound *3 by the obligations of truth, justice and humanity, in relation to other powers, as they are in the management of their own local concerns. States, or bodies politic, are to be considered as moral persons, having a public will, capable and free to do right and wrong, inasmuch as they are collections of individuals, each of whom carries with him into the service of the community the same binding law of morality and religion which ought to control his conduct in private life." The law of nations is a complex system, composed of various ingredients. It consists of general principles of right and justice, equally suitable to the government of individuals in a state of natural equality, and to the relations and conduct of nations; of a collection of usages, customs and opinions, the growth of civilization and commerce; and of a code of conventional or positive law. In the absence of these latter regulations, the intercourse and conduct of nations are to be governed by principles fairly to be deduced from the rights and duties of nations, and the nature of moral obligation; and we have the authority of the lawyers of antiquity, and of some of the first masters in the modern school of public law, for placing the moral obligation of nations and of individuals on similar grounds, and for considering individual and national morality as parts of one and the same science.c

and (2.) private international law, which, though based upon the first, regulates the reciprocal and personal relations of the inhabitants of different states.

a Dr. Francis Lieber, in his "Manual of Political Ethics," 2 vols., Boston, 1838, has shown with great force, and by the most striking and apposite illustrations, the original connection between right and morality, and the reason and necessity of the application of the principles of ethics to the science of politics and the administration of government. The work is excellent in its doctrines, and it is enriched with various and profound erudition.

b 2 Mason's Rep. 448. Story, J.

• A writer in the Edinburgh Review for April, 1843, considers the elements of which the law of nations is composed, as consisting (1.) of international morality, being the rules commanded by the Deity, and which may be called the divine or natural law of nations; (2.) of international law, being rules of conduct sanctioned by the public opinion and usages of civilized nations, and which may be called the human, the actual, the received, or the positive law of nations. The one treats the law of nations as a science, and the other as a system of positive rules.

Law of Nations in an

The law of nations, so far as it is founded on the principles of natural law, is equally binding in every age, and upon all mankind. But the Christian nations of Europe, and their descendants on this side of the Atlantic, by the vast superiority of their attainments in arts, and science, and commerce, as well as in policy and government; and, above all, by the brighter light, the more certain truths, and the more definite sanction which Christianity has communicated to the ethical

jurisprudence of the ancients, have established a law of *4 nations peculiar to themselves. They *form together a

community of nations united by religion, manners, morals, humanity and science, and united also by the mutual advantages of commercial intercourse, by the habit of forming alliances and treaties with each other, of interchanging ambassadors, and of studying and recognising the same writers and systems of public law.a

After devoting the present lecture to a cursory view of the history of the law of nations, I shall enter upon the examination of the European and American code of international law, and endeavour to collect, with accuracy, its leading principles, and to discuss its practical details.

The law of nations, as understood by the European world, cient Greece, and by us, is the offspring of modern times. The most refined states among the ancients seem to have had no conception of the moral obligations of justice and humanity between nations, and there was no such thing in existence as the science of international law. They regarded strangers and enemies as nearly synonymous, and considered foreign persons and property as lawful prize. Their laws of war and peace were bar

The law of nature, by the obligations of which individuals and states are bound, is identical with the will of God, and that will is ascertained, says Mr. Manning, either by consulting Divine revelation, where that is declamatory, or by the application of human reason where revelation is silent. Christianity, in the words of Butler, “is an authoritative publication of natural religion," and it is from the sanc tion which revelation gives to natural law, that we must expect the gradual increase of the respect paid to justice between nations. Christianity reveals to us a general system of morality, but the application to the details of practice is left to be discovered by human reason. See Commentaries on the Law of Nations, by Wm. Oke Manning, Esq., London, 1839, b. 2. ch. 1. This work is the first English treatise which I have seen, containing a regular and didactic discussion of the science, and it is a work of great excellence; and I beg leave to recommend it strongly to the attention of the American student.

barous and deplorable. So little were mankind accustomed to regard the rights of persons or property, or to perceive the value and beauty of public order, that, in the most enlightened ages of the Grecian republics, piracy was regarded as an honourable employment. There were powerful Grecian states that avowed the practice of piracy; and the fleets of Athens, the best disciplined and most respectable naval force in all antiquity, were exceedingly addicted to piratical excursions. It was the received opinion, that Greeks, even as between their own cities and states, were bound to no duties, nor by any moral law, without compact; and that prisoners taken in war had no rights, and might lawfully be put to death, or sold into perpetual slavery, with their wives and children.a

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*There were, however, many feeble efforts, and some successful examples, to be met with in Grecian history, in favour of national justice. The object of the Amphictyonic council was to institute a law of nations among the Greeks, and settle contests between Grecian states by a pacific adjustment. It was also a law of nations among them, and one which was very religiously observed, to allow to the vanquished the privilege of burying their own dead, and to grant the requisite truce for that purpose. Some of the states had public ministers resident at the courts of others, and there were some distinguished instances of great humanity shown to prisoners of war. During a cessation of arms in the course of the Peloponnesian war, Athens and Sparta agreed to an exchange or mutual surrender of prisoners. The sound judgment and profound reflections of Aristotle, naturally raised his sense of right above the atrocious maxims and practices of his age, and he perceived the injustice of that doctrine of Grecian policy, that, by the laws of war, the vanquished became the absolute property of the victor. "Wise men," he observed, “entertained different opinions upon that subject. Some considered

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Thucydides, b. 1. sec. 5. Mitford's History of Greece, 8vo. edit. vol. ii. 352. vol. vi. 107. 135. et passim. Isocrates, Orat. Panathe. Opera, edit. Wolfius, p. 635.-Barbari natura essent hostes. Ward's Inquiry into the History of the

Law of Nations, vol. i. 177–183. Goguet's Origine des Loix, &c., part 2. b. 5. Grotius, b. 3. c. 7. Justin's Hist. 1. 43. c. 3. Latrocinium maris gloriosum habebatur. Potter's Antiquities of Greece, b. 3. c. 10 and 12. b. 4. c. 21.

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