1st. Those rules of conduct which sound and enlightened reason is disposed to admit, as it were, intuitively. 2d. The opinions of able and learned men who have devoted their lives to the examination of the rules of justice and morality, and who have enriched mankind by the publication of invaluable treatises. 3d. The precedents established, or cases adjudicated by individuals learned in the law, and appointed by their respective governments to sit in courts of prize and arbitration. 4th. Treaties entered into between different, equal, and independent powers. 5th. The history and diplomacy of sovereign states. II. We come now to sketch the rise, progress, and history of the system which we have been defining. Of course, we need not go farther into antiquity than the period of Grecian empire. There is an incident mentioned by Montesquieu, we think, which exhibits the exquisite sensitiveness and refinement of the Athenians in pronounc ing upon the rules of kindness and benevolence-a tiny little bird, fluttering and bewildered in its attempts to escape from one of a larger species pursuing with opened talons, took refuge at last from its pursuer in the bosom of a boy. The boy, grasping the agitated thing in his hand, with exultation, wrung off its neck. The Athenians were filled with horror at the deed, and conceived the culprit deserving of death who could exhibit such unfeeling cruelty and insensibility. From the incident we might suppose that such a people would be disposed to admit the laws of kindness and humanity toward all the world. It was not so. Everything that was not Greek, was barbarian; and all barbarians, according to the prince of Greek philosophers, Aristotle, were designed by nature as the slaves of his countrymen. The traveling philosopher was liable to be seized and sold into bondage. Prisoners might be put to death without any compunction. National fleets were adapted to purposes of piracy. The Amphyctionic Council is mentioned as a kind of international institution with the Greeks for the settlement only of their disputes with each other. Resident ministers were admitted to a small extent. The only evidences of any system on this subject which a learned writer, quoted by Wheaton, could find in Greece, were, the rites of sepulture granted to the dead in battle-the mercy exhibited to refugees at a temple-the freedom enjoyed by all Greeks to resort to public games and temples without molestation-the severe punishment for sacrilege, and forbearance in not erecting durable trophies after victory. The genius and spirit of Rome, as is known by every school-boy, were military. Power, aggrandizement, conquest, was the ruling and the master passion. Stern, selfish and overbearing, the Roman never advanced beyond the capitol and the seven hills. He had no sympathies beyond these; "not that I love Cæsar less, but Rome more," was the one fierce and dominant sentiment from the era of Romulus to the downfall of the empire. For more than seven centuries, says Mr. Wheaton, the Romans pursued a scheme of aggrandizement, conceived in deep policy and prosecuted with inflexible pride and pertinacity, at the expense of all the useful pursuits and charities of life. All solicitude for the fate of their fellow-citizens made captive in war, was disdained by their stern and crafty policy. Hoc caveat mens provida Reguli Fadis, et exemplo trahenti The fruits of this Roman system are easily conceived. Victory left no rights to the vanquished. Every possession passed at once out of their hands, and themselves and families entered upon a cruel and interminable bondage. Kings and generals in chains were a necessary appendage to the conqueror's chariot wheels; and the Eternal City shouted with the gorgeous spectacle. Even in the most polished ages of the empire, when its philosophy and its jurisprudence had advanced to high perfection, the doctrine was still asserted that prisoners of war became slaves as a matter of course, and that without stipulation to the contrary, even in time of peace whoever passed from one country to another became inevitably a slave. "It is impossible," says Kent, "to conceive of a rule of international law more directly calculated to destroy all commercial intercourse, and to maintain eternal enmity between nations." The only traces of an approach to a correct understanding of national rights and duties among the Romans, is to be found in the principle carried out that only a sworn soldier could lawfully engage with the enemy, and in the establishment of the Fecial law and college of heralds, charged with the rights of war and peace. Cicero in vain protested against the enormities practised by his countrymen, and the unfeeling systems which they cherished. The laws in relation to shipwrecked property are adduced by writers in proof of the state of things which characterized even the most polished nations of antiquity. The constant custom of the Rhodians was to devote to plunder everything that had been wrecked upon the seas and thrown to the shore. The Romans adopted the system with the improvement of appropriating them to the state. The emperors Hadrian and Antoninus renounced their claim if the rightful owner could be found; but this liberal policy found little countenance with their successors. International law may be correctly represented as the offspring of the civilization, commerce, and Christian influences of modern ages. We have recognized nothing of it before the Christian era, and we see as little in that fearful and gloomy period of a thousand years which followed the overthrow of the Roman empire by barbarians from the Northern hive. "Numerous cases occurred of acts of the greatest perfidy and cruelty toward strangers and enemies. Prisoners were put to death for their gallantry and brave defense in war. There was no reliance upon the word and honor of men in power. Reprisals and private war were in constant activity. Instances were frequent of the violation of embassies, of the murder of hostages, the imprisonment of guests, and the killing of heralds. The victor in war had his option in dealing with prisoners, either to put them to death, to reduce them to slavery, or exact an exorbitant ransom for their deliverance. So late as the time of Cardinal Richelieu it was held to be the right of all nations to arrest strangers who came into the country without a safe conduct." Mr. Ward discovers the causes of the regeneration of Europe from ignorance and anarchy, in the institution of the feudal system, in the union of all nations in one form of religious worship, in chivalry, in treaty stipulations, which began to grow prevalent, and in an acknowledgment of the fights and rank of ambassadors. The discovery of the long-lost Roman jurisprudence at Amalfi, in the twelfth century, has been added to the list; but, according to Mr. Wheaton, with little propriety, as the influences of this law had never been lost in Europe. The conquered nations, he tells us, though not permitted to retain their lands and possessions by their Gothic masters, were yet allowed their jurisprudence; so that the study and practice of Roman law could never have been abandoned even in the darkest night of the middle ages. The Roman law, he goes on to say, infused itself into the Roman church, and was reproduced in the canon law compiled by Gregory IX. We are not allowed to suppose that the perverse application of Christianity, such as it existed at that period, really was efficient in producing good. Even as late as the times of Queen Elizabeth and Lord Bacon, a war upon infidels to enforce obedience to the Christian faith, was considered laudable. Coke doubted not that an alliance for mutual defense between Christians and Turks was very reprehensible. Grotius thought it clear that Christendom was bound to be united against the infidels. Bacon, in the language of Chancelor Kent, conceived it a matter of so much doubt as to propound it seriously as a question, whether a war with infidels was not first in the order of dignity, and to be preferred to all other just temporal quarrels; and whether a war with infidels might not be undertaken merely for the propagation of the Christian faith. About the middle of the sixteenth century, Francis de Victoria, Dominic Soto and Francisco Suarez, able and enlightened men, began to perceive some clear traces of light through the rubbish by which they were surrounded. Soto wrote a treatise upon justice and law, and Suarez on divine and human legislation. Gentilis, an Italian, escaped to England about the same time, from ecclesiastical persecution at home, and was elevated to a professorship at Oxford. According to Mr. Wheaton, the fruits of the professional labors of this civilian were given to the world in the earliest reports of judicial decisions on maritime law published in Europe. His work upon the law of war "served as a light to guide the path of the illustrious Grotius when he entered upon and pursued the same track of investigation in the following century." Hugo Grotius was one of a galaxy of great men who added glory to their age and country. He arose, we are told, like a splendid luminary, dispelling darkness and confusion, and imparting light and security to the intercourse of nations; his immortal work on the laws of peace and war being found under the nightly "pillow of Gustavus Adolphus in that heroic war which he waged in Germany for the liberties of Protestant Europe." Grotius had experienced in his own heart the enlivening, elevating, and ennobling influences of true Christianity. He regarded, like Lord Bacon, the establishment of truth and science; but more than all, he regarded the doctrines of reason and humanity. This enlightened German laid down the first and original principles which should govern as well the intercourse of nations as of individuals. His was the first full and systematic treatise upon the rights and duties of independent powers; and he fortified himself with illustrations from the history of mankind in every age, from the sentiments of poets, philosophers, historians, civilians and divines, so that his labors constitute almost a perfect library of knowledge. His work has been elevated to the dignity of the classics, by being edited, as we are told, cum commentariis variorum. From the time of Grotius until this, there have existed a series of brilliant writers upon the intercourse of nations, whose works have received the highest admiration, and been admitted to the greatest authority among men. Puffendorf wrote an immense volume, which we have sometimes seen in antiquarian libraries. The slumber of the once celebrated work of Wolfius, in nine ponderous tomes, is thought by Mr. Wheaton to be not often disturbed. The names of Burlemaqui, Barbeyrac, Wiquefort and Rutherforth, succeed; as also those of Martens and Bynkershoeck. Vattel closes the catalogue of these brilliant lights. As a writer, he is chaste; in style, clear, eloquent and popular; and although found fault with for a want of scientific precision, his work has been more frequently referred to among nations of late years than those of all his predecessors. Chancelor Kent, in the first volume of his commentaries, goes over all the ground embraced in these writers, and furnishes a most beautiful treatise upon the subject; to which, and the valuable and philosophical work of Henry Wheaton, we acknowledge the largest indebtedness. III. The third division of our subject embraces the rights which pertain to independent states and communities during the maintenance of pacific regulations with the rest of the world. The history of mankind exhibits one continuous series of offensive and defensive hostilities, and yet we are told on high authority, that war is undertaken for the sake of peace. One of the first and highest principles of public law is, that nations, without reference to character, population or resources, are to be considered in relation to each other, on terms of perfect equality. The legitimate occupation of every nation is to look after and provide for its own affairs, without any right whatever to intermeddle with those of its neighbors. Nothing but extreme necessity will justify such interference, and it must partake of the right and be founded upon the clearest principles of self-defense even to be tolerated. It was thus that Sir Walter Scott, in his life of Napoleon, endeavored to justify the Crown of England for seizing upon the Danish fleet; but the pretext was in this instance, we think, entirely too flimsy. The dismemberment of Poland by the Northern powers, the Prussian invasion of Holland in 1787, and of France five years after, are introduced as violations of these clear international rights. In the same category are to be found the Austrian invasion of Naples in 1820, the French invasion of Spain in 1823, and the frequent interference of the other powers of Europe in the elections of the GerVOL. 1.-12 177 manic empire, the kingdom of Poland, and the see of Rome. Lord Castlereagh laid down the law on this point as England understood it in 1821. 1st.—That the clear right of interference existed when the internal transactions of a state endangered seriously the security and interests of others. 2d. The interference to be grounded only on the strongest necessity. 3d. That it did not apply, indiscriminately, to all revolutionary movements. 4th. That in any case it was an exception to general rules of great value and importance. The cases where it is supposed that the rule was observed were, the English assistance granted to the Netherlands in their struggles with Spain; the French alliance with us in our revolution; the recognition of the independence of the South American provinces in 1822, and of Texas more recently. The alliance of Britain, France and Russia, for the relief of the cruelly oppressed Greeks, stands on peculiar grounds. Humanity itself called for an interference where all its principles had been trodden under foot by a barbarous and despotic government. We quote from Mr. Wheaton the preamble of the three powers which asserted the "necessity of putting an end to the sanguinary contest which, by delivering up the Greek provinces and the isles of the Archipelago to all the disorders of anarchy, produces daily fresh impediments to the commerce of the European states, and gives occasion to piracies, which not only expose the subjects of the high contracting parties to considerable losses, but besides, render necessary burthensome measures of protection and repression." It arises out of the perfect independence of nations that they have a right to form treaties and compacts with all the rest of the world; that they may form alliances offensive and defensive, and grant to particular nations privileges of trade, etc., which they refuse to others, without justifiable cause of complaint. The United States in 1807, by an embargo, carried out the privilege to the greatest extent, by shutting up their ports to all the world; but in general, the policy of our country has been on the side of entire liberality toward all its neighbors. We see this in the commercial treaties formed with Central America, Denmark, Sweden, and the Hanseatic cities, and in the suggestions of the late presidential message in relation to Spain, Portugal, and the Netherlands, whose interests were somewhat unduly affected by the tariff of 1812. It also arises out of the independence of nations that the right of legislation extends only to their own territory and subjects. To this great rule we will enumerate what are apparent exceptions, but what are countenanced and adopted by the comity of states, constituting one of the subjects of Judge Story's "Conflict of Laws." 1. The qualities of individuals in their own states as citizens, legitimate, illegitimate, idiot, lunatic, bankrupt, married, divorced, etc., follow them wherever they go. To this there is, to some extent, an exception in the case of citizens, for they may contract obligations in other countries inconsistent with their citizenship. England, however, protests against any such right as that of expatriation, claimed by her citizens found in arms against her, and the United States have |