tional Law. Its rules not com mands. powerful wrong-doers. Therefore, thirdly, of the body of InternaInternational Law we never can predicate that its rules are commands; we cannot assert that they shall be obeyed, because they have through long observance grown into a sort of law; we can only say they ought to be obeyed because of their long observance and of their consequent utility. Hence, fourthly, neither the law of God, nor Law of positive rules of morality, nor the law of nature (whatever that may be), can be considered as the source or foundation of International Law, or as exercising any absolute necessary influence upon international relations. We say an absolute necessary influence; for the existence of certain moral rules, which nations ought to observe, cannot be denied. Meanwhile it remains to add a few words upon the Sphere of International Law, and upon what some writers call its Sources, others its Foundation, but what, to speak correctly, is its Evidence; that is, the places where the acts of nations which recognise and give rise to reciprocal rights exist. nature not its source. Between International Law and Public (or Munici- Its sphere. pal) Law there is this strong line of demarcation'—that whereas in the latter the social body is separated into two distinct legal or moral personages (the Sovereign and the People), and their mutual relationship is an object of interest to that law; in the former the whole social body is united into one sovereign independent state, and only its relations with other such bodies are the subject of its investigations. Now in those relations the acts of which such bodies are capable can be arranged in three divisions. In the first class are comprised actions which, though morally right and praiseworthy, cannot be enforced; in the second, actions which are morally right and whose performance can be compelled by coercion; in the third class are found actions which are morally wrong and which may be prohibited and prevented by resistance, or any forcible means. The actions comprised in these two last divisions form the sphere, and the rules on which the settlement of difficulties connected with them depends are the component parts, of International Law as distinct from International Morality. 1 Schmalz, Liv. 1. ch. 1. p. 6. French edit. 1823. International Law. Its evidence. Its two An important question therefore arises, viz. How are we to ascertain these rules? Are there places where such information exists as may throw light upon them? In other words, where are we to look for the evidence of these rules? "The Law of Nations," says Sir William Scott, "is fixed and evidenced by general, ancient, and admitted practice, by treaties and by the general tenor of the laws, ordinances and formal transactions of civilized states'." According to this great authority therefore the evidence of International Law is to be found in the history, the practice, and the contracts of nations. His opinion however, in addition to the defect of want of precision, is open to another objection—that of want of completeness. Accordingly, Mr Wheaton extends the list and enumerates the following, as composing the evidence of the law we are engaged upon. First. Text writers of authority whom he calls, with some exaggeration, the witnesses of the sentiment and usages of civilized nations. Secondly. Treaties of peace, alliance, and commerce. Thirdly. Marine ordinances of particular states3. Fourthly. The adjudications of international tribunals. Fifthly. The written opinions of official jurists given confidentially to their own governments. Sixthly. The history of wars, negotiations, treaties of peace, and other transactions relating to the public intercourse of nations. To this enumeration by Mr Wheaton of the sources from which information in disputed questions of international transactions can be drawn, a few words of explanation may be added. And, in the first place, it is clear that the subject-matter of International Law may, with great convenience, be arranged into two classes: fold divi- that of the customary and that of the conventional rules of which it is composed. For whilst, to use Lord Stowell's words, a great part of the Law of Nations stands on no other foundation than that of usage and practice3," another and not unimportant part consists of the express contracts of nations with each other. For sion. 66 1 Le Louis, 2 Dodson, 249. 2 Marshall, On Insurance, 4th edit. p. 324. tional ary rules. rules. the customary branch then of the law we are now ex- Internaamining we must seek for evidence in the decisions of Law. judges, in the confidential opinions of jurists given to Customtheir governments, and in the marine ordinances of particular states: whilst the evidence of the conventional Conventional branch is confined to treaties, whether of peace, alliance or commerce. In the second place, with respect to the other evidence spoken of by Mr Wheaton, viz. the opinions of text writers, and the history of wars, nego- Text writiations, treaties of peace and other public transactions, ters, &c. it is clear that whilst the former are matter of opinion only, mere statements of private views, and therefore, except as speculative views, deprived of authority, though as speculations often very valuable; the latter are extremely useful as shewing the state of parties, the current of public opinion, and the mode of discussing and settling grave and perplexing questions at the particular times recorded. From this consideration of the evidence we proceed to remark upon the elements of this law, and the relationship of what is called Natural to International Law. The elements. Interna tional morality. Their re The elements of which this law is composed are:First', those rules of international conduct which are framed in accordance with the Divine or Natural Law, and which are often known as international morality; and secondly, those rules that are dictated by public opinion and established by consent and usage, forming the positive law of nations and known as International Law proper. That the latter set of rules is the most lative useful and practical part of the law we are enquiring value. into there can be no doubt; yet it would be improper to separate from it its moral branch and not to uphold its importance, and to remember that the happiness of mankind demands the recognition of national quite as much as it does of individual morality. At the same time, to · assert that this law as a system is identical with the law of nature, or that it is founded upon a primary divine law, is as absurd as to hold with Hobbes that organized nations assume the personal characters of individuals, and that the moral rules by which both ought to be governed are the same. These two branches then form together a 1 Ed. Rev. Vol. LXXVII. 2 De Cive, Imperium, c. XIV. § 4. Interna tional Law. Its bind ing force. Law of Nations Greece. system rendered perfect by the application of one to the other,] and therefore to separate national morality from International Law proper would be as productive of harm as to encourage the suggestion that governments are not as strictly bound by the obligations of truth, justice, and humanity in relation to other powers, as they are in the management of their own local concerns. International Law, so far as it is in accordance with principles of justice, truth, and humanity, is equally binding in every age, and upon all mankind. But the Christian nations of Europe, and their descendants across 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 system of law 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. After devoting the present chapter to a cursory view of the history of International Law, we 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 their practical details. This law, as understood by the European world, and in ancient by America, 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. [In ancient Greece, from the earliest to the latest period of its history, we find nothing to lead us to the conclusion that the intercourse of state with state, whether in peace or war, was regulated by any systematic legal rules. In peace, or rather in the short intervals of actual cessation from hostilities, there was as little desire among the neighbouring states of which Greece was composed to under Nations. stand each other's institutions and laws as there was Law of thought of recognising the existence of any of those ge- Ancient neral or universal rights and obligations that have been Greece. found so convenient in modern times for facilitating the international relations of the civilized world; whilst war was disfigured by a ferocity and an absence of legal restraint that are happily unknown to later days. In the so-called heroic ages, we know from Homer1 the extent to which piracy was carried, and the fact that the pirate's business had very little taint of dishonour attaching to it. Thucydides too speaks of the reign of Minos as an era in civilization, when by his efforts the Egean was cleared from the swarm of pirates that infested its shores. Nor was piracy confined to those early days: in later times the practice was avowed by powerful Greek cities, and even the fleets of Athens, glorious as was her naval renown, did not disdain occasionally to imitate the Phocæans and relieve the dulness of life by a little maritime robbery. But in addition to this scourge, the ferocity with which hostilities were carried on, the customary devastation by which they were marked, the entire absence of humanity to the conquered, the want of faith in the observance of conventions, and the deep-rooted existence of slavery as a domestic institution, shew that whatever progress civilization had made in Greece, its influence was not productive of anything like a system of International Law based upon honour, justice and equity. And however eloquent was the language, however earnest the attempt of philosophers like Plato and Aristotle to maintain the superiority of equity and faith over lawless force, or to urge the claims of right against might, such attempts and such language were vain. As far then as the progress of International Law is concerned, the history of Greece presents little that is interesting or valuable, whatever interest and value it may have in the history of civilization and of man3. Were it worth while to dwell at further length upon 1 Odyss. xv. 385, 426; xvII. 425; III. 71-74. Thucyd. 1. § 8. 2 Justini Historia, Lib. XLIII. 3. 3 The reader is directed to Laurent's admirable work, L'Histoire de l'Humanité, for full information on the subjects above mentioned. The following passages deserve notice, Tome XI. Livres Premier et Troisième. |