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suggestion, that governments are not as strictly bound by the obligations of truth, justice, and humanity, in relation States. 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 relation and conduct of nations; of a collection of usages and customs, 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.
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 nations peculiar to themselves. They
a 2 Mason, 448. Story, J.
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 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 their practical details.
The law of nations, as understood by the European world, and by us, is the offspring of modern times. The most reLaw of Na- fined states among the ancients seem to have had no concient Greece. ception of the moral obligations of justice and humanity
tions in an
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 barbarous 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 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 Mitford's History of Greece, 8vo. edit. vol. ii. 352. vol. vi. 107. 135. et passim. Ward's Inquiry into the History of the Law of Nations, vol. i. 177-183. Goguet's Origine des Loix, &c. part ii. b. 5. Grotius, b. iii c. 7. Justin's Hist. 1. 43. c. 3. Potter's Antiquities of Greece, b. iii. c. 10. & 12. b. iv. c. 21.
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 to check violence 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 superiority as a proof of virtue, because it is its natural effect, and they asserted it to be just that the victors should be masters of the vanquished; whilst others denied the force of the argument, and maintained that nothing could be truly just which was inconsistent with humanity." He then proceeded to weaken by argument the false foundations on which the law of slavery, by means of capture in war, was established; and though he does not write on the subject very distinctly or forcibly, it seems to be quite apparent that his convictions were on that side.
The Romans exhibited much stronger proofs than the In Greeks of the influence of regular law, and there was a marked difference between those nations in their intercourse
a Mitford's History, vol. 5. 378-9.
b Thucyd. 1. 5. c. 18. c Gillies' Aristotle, vol. 2. 35, 36.
with foreign powers. It was a principle of the Roman government, that none but a sworn soldier could lawfully fight the enemy; and in many instances the Romans showed that they excelled the Greeks, by the possession of a sterner and better sense of justice. The institution of a college of heralds and the fecial law, were proofs of a people considerably advanced in the cultivation of the law of nations as a science; and yet with what little attention they were accustomed to listen to the voice of justice and humanity, appears but too plainly from their haughty triumphs, their cunning interpretation of treaties, their continual violation of justice, their cruel rules of war, and the whole series of their wonderful successes, in the steady progress of the conquest of the world. The perusal of Livy's magnificent History of the rise and progress of the Roman power, excites our constant admiration of the vigour, the skill, the valour and the fortitude of the Roman people; yet, notwithstanding the splendour of the story, and the attractive simplicity of the writer, no reader of taste and principle can well avoid feeling a thorough detestation of the fierce spirit of conquest which it displays, and of the barbarous international law and customs of the ancients.
A purer system of public morals was cultivated, and insensibly gained ground, in the Roman state. The cruelties of Marius in the Jugurthan war, when he put part of the inhabitants of a Numidian town to the sword, and sold the rest for slaves, were declared by Sallusta to be a proceeding contra jus belli. At the zenith of the Roman power, the enlarged and philosophical mind of Cicero was struck with extreme disgust, at the excesses in which his countrymen indulged their military spirit. He justly discerned that mankind were not intended, by the law and constitution of their nature, as rational and social beings, to live in eternal enmity with each other; and he recommends, in one of the most beautiful and perfect ethical codes to be met with
a Sal. Jug. ch. 91.
among the remains of the ancients, the virtues of humanity, liberality, and justice, towards other people, as being founded in the universal law of nature. Their ancestors, he observed, applied the term enemy to that man whom they regarded merely as a foreigner, and to deny to strangers the use and protection of the city, would be inhuman. To overturn justice by plundering others, tended to destroy civil society, as well as violate the law of nature, and the institutions of Heaven; and by some of the most happy illustrations, and pathetic examples, Cicero vindicated the truth, and inculcated the value of the precept, that nothing was truly useful which was not honest. In the latter ages of the Roman empire, when their municipal law became highly cultivated, and adorned by philosophy and science, the law of nations was recognised as part of the natural reason of mankind. Quod vero naturalis ratio inter omnes homines constituit, id apud omnes gentes peræque custoditur, vocatur que jus gentium, quasi quo jure omnes gentes utantur.Þ The Roman law was destined to attain the honourable distinction of becoming a national guide to future ages, and to be appealed to by modern tribunals and writers, in cases in which usage and positive law were silent, as one authoritative evidence of the decisions of the law of nations.
It must be admitted, however, that the sages from whose works the pandects were compiled, speak very indistinctly and imperfectly on the subject of national law. They must be read with much discrimination, as Grotius observed, for they often call that the law of nations which prevailed, and perhaps by casual consent, among some nations only, and many things which belonged to the law of nations they treated indiscriminately with matters of mere municipal law. The Roman jurisprudence, in its most cultivated state, was a very imperfect transcript of the precepts of na
a Off. b. 1. sec. 12. b. 3. sec. 5, 6, 7. 11.
c Proleg. sec. 53.