CHAPTER II.

OF THE FOUNDATION, MODE OF STUDY, AND DIFFERENT DIVISIONS, KINDS, OR DESCRIPTIONS OF

INTERNATIONAL LAW.

CHAPTER II.

OF THE FOUNDATION, MODE OF STUDY, AND DIFFERENT DIVISIONS, KINDS, OR DESCRIPTIONS OF INTERNATIONAL LAW.

HAVING thus inquired, perhaps at too great length, how international law has been cultivated as a science, in ancient and in modern times, we now direct our inquiries to the foundation, and to the different divisions, kinds, or descriptions of that law. And in prosecuting these inquiries, it may be of use to endeavour to remove, in some measure, the obscurity, in which the erudite labours of many modern jurisconsults, have involved it.

At the outset, we took occasion to intimate, that our inquiries were to embrace only the compulsory or coercive law of nations. In the course of the last century, more correct and precise views, than had previously prevailed, 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. 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 law of nations appears to have been held to comprehend only those rules of reciprocal conduct those juridical relations of states-those co-rela

tive rights and obligations, which have been called perfect, and which admit of being enforced, consistently with justice, reciprocity, and general expediency.

Before, however, the important distinction just alluded to, had been fully recognised, and before the jus gentium, or rather the jus inter gentes, had been much cultivated as a separate science, jurists had been much occupied with discussions concerning the jus naturæ et gentium; the latter term implying, not international law, properly so called, but the law, common to men, as distinguished from the lower animals, or who, at least, have made some progress in civilization. In these discussions, it appears to have been the fashion for eminent jurists, who cultivated law generally, as a science, to contemplate mankind, not as they have actually existed in society, not as known to us from the authentic records of history, or as the objects of actual observation, but as existing in some state, whether of warfare, or of peace, to which no precise date can be assigned, but which is antecedent to the establishment of civil society, or in some other imaginary state, in which man is divested of many of his characteristic qualities. From their writings, it appears to have been the great object of these jurists, by means of the hypothesis of such a state of nature, of which there is no evidence, to discover a priori, and establish a sort of code of natural law, antecedent to, and the prototype of all human positive law. And having once established such a system, under the appellation of jus naturæ, and unfolded its rules in detail, these jurists were easily led to hold, that the jus gentium, more correctly expressed jus inter

gentes, was nothing else than the jus naturæ, applied to nations, mutatis mutandis. And such, we have seen, chiefly through the influence of Pufendorff and Thomasius, continued long to be the view entertained by the generality of jurists.

But, so far as it was founded upon a fictitious or imaginary state of nature, in which mankind have never been found to exist, it is plain, the application of the jus naturæ to independent states, could not really promote the advancement of international law. And even although this jus naturæ had been founded upon, or derived from, the real state of mankind, as ascertained from observation and experience, instead of an imagi nary one, it does not appear, that any great advantage can be gained in point of discovery, elucidation, facility of investigation, or ascertainment of truth, by transferring to nations, the rules which have been found applicable to individual men. The only intelligible meaning of the law of nature, in the sense of the jurists, or of law applicable to men in a state of nature, is the law appli cable to men, considered with reference to each other, merely as separate individuals, unconnected by the domestic or social union. And this abstraction, it is manifest, so far as it is of any use, may be made equally well, whether we consider men, as so many individual animals, scattered over the surface of this globe, or as living in civil society, but without any reference to their collective capacity, to the state or government, or to any of those institutions which naturally, if not necessarily, arise, in the progress of the species. In the latter view, the law of nature, as it is called, so far as regards individual men, corresponds very much, with

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