INTERNATIONAL LAW.

CHAPTER 1.

OF THE FOUNDATION AND HISTORY OF THE LAW OF

NATIONS.

tion.

["THERE can be few nobler objects of contemplation and Introducstudy," says a modern writer of eminence', "than to trace the gradual progress of International Jurisprudence;" and such has been the inspiring influence of this science, that for upwards of three hundred years from the time of Suarez to our own days it has claimed the exclusive attention of a host of writers, with more or less advantage to the progress of that science, and with more or less reputation to themselves. In so large a crowd of authors of different countries, impressed with different feelings, it is not surprising to find some difference of opinion upon the positions of the subject in the body of general Jurisprudence, upon the method of arrangement, and the proper classifications of its parts; but various as are their opinions, and widely as they differ in detail, they are unanimous in the testimony they bear to the influence of International Law upon the well-being and happiness of nations, and in the energy and devotion they shew in stating the principles and explaining the foundation of what some of them, with more zeal than precision, have called the Law of Nations. For three hundred years and upwards then the study of International Law has been pursued in the great countries of Europe, with such an amount of learning and research, and its doctrines

1 Professor Katchanowsky.

1

tion.

Introduc- explained with so much vigour and eloquence, "as to raise it from a few simple rules of natural law to the goodly and elaborate fabric it has now become." From the fall of the Roman empire to the Reformation International Law was not directly pursued and illustrated as a separate system of law, but a stimulus of no small nature was given to the study of subjects much akin to it in the publication of those maritime codes, which so remarkably distinguish a period of time when intellectual darkness hung over Europe, and when the science of law lacked that development it had previously received from the genius of Rome. From the era of the Reformation to the peace of Westphalia the stimulus thus given to mercantile law, joined to an increasing fondness for Roman law, was felt in another direction; and the patience of Suarez, the legal acumen of Alberic Gentili, and the vast erudition, the eloquence and the earnest devotion of Grotius, at once drew the attention of the world to the subjects they illustrate so ably. But it is from the peace of Westphalia that International Law, properly so called, dates, that important period in the history of its rise and progress, from which it has grown with the growth and developed with the development of the political system of Europe, has undergone changes that have given it a new character, and by the skill of diplomatists, the discrimination and learning of judges, and the research and eloquence of jurists, has been established among the civilized nations of Europe as their public law. Nor is it in Europe alone that it occupies this prominent position; in the United States' it is equally recognised as a part of their public law-recognised and sanctioned from the period when they ceased to be a part of the British empire and assumed the character of an independent nation;] and if during the war of the American revolution, Congress, claiming cognizance of all matters arising upon the law of nations, professed obedience to that law according to the general usages of Europe;" not less does it still profess to acknowledge its influence and be guided by its precepts. [Nor can we wonder at the anxiety displayed on both sides of the Atlantic to preserve the integrity, to uphold the dignity, and to vindicate the 1 Thirty hogsheads of sugar v. Bayle, 9 Cranch, 198. 2 Ordinance of the 4th Dec. 1781. Journals of Congress, vii. 185.

66

tion.

majesty of International Law. For when we remember Introducwhat have ever been professed to be its primary objects, viz. the independence of nations, the inviolability of their several territories, and the maintenance of their honour, it stands to reason that the happiness of states is bound up with the fate and fortunes of this law: "a law whose existence and application," says Daniel Webster, "is as advantageous to states as the existence of private law to the citizens of a country." The faithful observance of this law then is essential to national character and to the happiness of mankind: a necessity not the less urgent, if what Montesquieu says of it be true, "that it is based upon the principle that different nations ought to do each other as much good in peace and as little harm in war as possible, without injury to their true interests'." And yet in spite of the advantages which the civilized world has reaped from the cultivation of International Law as a science, it cannot be denied that there are objections of no slight character to it as a system, and no slight difficulties in the way of its study. For whilst on the one hand, the absence of a general tribunal, common judges, and all the means to enforce obedience to its dictates which municipal law commands, lays it too much at the mercy of powerful nations, whose passions often. interrupt the peaceful progress of this code; on the other, the want of a clear and precise definition of its precepts, and a recognised authoritative classification of its various parts, are serious lets and hindrances to a proper appreciation of it as a science. The best way to reply to those objections, and endeavour to remove these difficulties, is to shew that the legal principles by which nations ought to be bound in their external and international communications are capable of being explained in an orderly and methodical sequence. But some of the difficulties environing the study of International Law meet the student at the very outset of his work; for, if in the progress of his labours he necessarily finds oft-disputed and still unsettled points arising out of the conflict between belligerent and neutral claims, if even in times of peace, he finds nice questions of International Law to which known doctrines do not apply; he finds also to his surprise, that the very sphere and scope, the foundation, the elements, and the

1 Esprit des Lois, Liv. 1. ch. 3.

Introduc evidence of the science are disputed points, and that in these preliminaries the highest authorities differ.

tion.

International Law, its definition.

Sources of
Interna-
tional
Law.

Jt has no sanction.

Indeed, these disputes have commenced at the very threshold of the subject', and much has been written to establish with accuracy its true title-much that need not here be repeated; for if it be an established fact that the subjects of the law we are now discussing, those who are influenced by and act upon its rules, are sovereign and independent, acknowledging no one superior authority by whom commands can be enforced; if, on the other hand, laws are rules set by a determinate rational being, or a determinate body of rational beings, to determinate rational beings owing obedience, there can be no such thing as a uniform body of rules to govern them, or one that shall come within the term Law of Nations, any more than there can be a uniform body of such law.

Rejecting then the title Law of Nations, and adhering to that of International Law, 66 as a definite and expressive term," which though not altogether accurate, is convenient and now in common currency, the next step is to note what it means, to describe what International Law is, so as to avoid blending and confounding International Law as it is with International Law as it ought to be2.

By the term International Law we mean that collection of rules, customary, conventional and judicial, which independent states appeal to for the purpose of determining their rights, prescribing their duties and regulating their intercourse, in peace and war.

Hence it follows, first, that the sole source of this law, the fountain from which it flows, whether in its customary, conventional, or judicial-customary shape, is the consent of nations. Secondly, this body of rules is utterly deficient in one important element of law proper, namely, a sanction. However sound, however useful, however long established, any or all of these rules may be, for their infraction there is but one real remedy, the sword; for although public opinion may be and often is appealed to with considerable force, in cases of violation of international morality, yet such appeal is not always attended with success, and at best it affords but a precarious defence against the acts of

1 See for the whole discussion and the authorities, Wheaton, Elements, ed. 1863, Vol. 1. pp. 18-20.

2 Austin, p. 285 (Note), 2nd ed.