Lapas attēli





WHEN the United States ceased to be a part of the Bri-
tish empire, and assumed the character of an independent
nation, they became subject to that system of rules which
reason, morality, and custom, had established among the
civilized nations of Europe, as their public law. During the
war of the American revolution, Congress claimed cogni-
zance of all matters arising upon the law of nations, and
they professed obedience to that law, "according to the
general usages of Europe." By this law we are to un-
derstand that code of public instruction, which defines the
rights and prescribes the duties of nations, in their inter-
course with each other. The faithful observance of this
law is essential to national character, and to the happiness
of mankind. According to the observation of Montes-
quieu, it is founded on the principle, that different nations
ought to do each other as much good in peace, and as

a Ordinance of the 4th December, 1781, relative to maritime cap-
tures. Journals of Congress, vol. vii. 185.

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positive Law

little harm in war, as possible, without injury to their true interests. But, as the precepts of this code are not defined in every case with perfect precision, and as nations have no common civil tribunal to resort to for the interpretation and execution of this law, it is often very difficult to ascertain, to the satisfaction of the parties concerned, its precise injunctions and extent; and a still greater difficulty is the want of adequate pacific means to secure obedience to its dictates.

There has been a difference of opinion among writers, concerning the foundation of the law of nations. It has Natural and been considered by some as a mere system of positive inof Nations. stitutions, founded upon consent and usage; while others have insisted that it was essentially the same as the law of nature, applied to the conduct of nations, in the character of moral persons, susceptible of obligation and laws. We are not to adopt either of these theories as exclusively true. The most useful and practical part of the law of nations is, no doubt, instituted or positive law, founded on usage, consent, and agreement. But it would be improper to separate this law entirely from natural jurisprudence, and not to consider it as deriving much of its force, and dignity, and sanction, from the same principles of right reason, and the same view of the nature and constitution of man, from which the science of morality is deduced. There is a natural and a positive law of nations. By the former, every state, in its relations with other states, is bound to conduct itself with justice, good faith, and benevolence; and this application of the law of nature has been called by Vattel, the necessary law of nations, because nations are bound by the law of nature to observe it; and it is termed by others, the internal law of nations, because it is obligatory upon them in point of conscience."

We ought not, therefore, to separate the science of public law from that of ethics, nor encourage the dangerous

a Vattel, Prelim. sec. 7.

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