The neighbourhood of dreaded enemies of the Christian religion of encroaching Mohammedan powers-brought up the question whether compacts could be made with infidels. This could not be avoided, if the two religions should have any intercourse, as in Spain; but the lawfulness of treaties, especially of alliances with them, was denied. Fulk, Archbishop of Rheims, told Charles the Simple that there was no difference between becoming the ally of Pagans and abandoning God for the worship of idols. (Grotius, ii. 11, § 3.) And this feeling that, whilst leagues of peaceful intercourse could be entered into with infidels, alliances with them were forbidden by Christian law, long remained; and was strengthened, no doubt, by the apprehension that thus the scandal would arise of Christians leagued with unbelievers against fellow-Christians.1 Many cruelties handed down from barbarous times held their ground through the medieval period. Thus strangers were capriciously treated, and had scarcely any rights. (Compare § 63.) After this period was over, Cardinal Richelieu showed its influence, by avowing the right of arresting all strangers who came into the kingdom without safe-conducts; and a number of exam-* ples occur in those times of illustrious strangers, like Cœur de Lion in 1192, who when thrown by some accident on Christian shores were kept in captivity until they were ransomed. Cruelties in war, of which we speak below in §§ 128, 129, although often prevented by the genius of Christianity, were still common enough. Captives were held for a ransom, or even sold. serf felt the full severity of war.2 § 9. The Our science was called first by Zouch (professor at Oxford), Names given to in his jus feciale, 1650, jus inter gentes. Its common this science. English appellation formerly was, the law of nations. Since Bentham led the way, it has been called international law. A distinction of no great value has been set up between these two terms, according to which the former relates to the historical character or origin of the law, and the latter to its jurisdiction or application. They will be used by us as equivalents. 3 The law of nations, jus inter gentes, is not to be confounded Not the same as with the jus gentium of the Romans. This term jus gentium. denoted the principles and usages of law common to all nations, that is, practically, to all nations known to the Romans, as contrasted with what was peculiar to the jus civile, Sir E. Coke condemns alliances with infidels in a passage of his 4th institute cited by Ward; and his contemporary Grotius (ubi supra) does not like them. 2 See Ward's Hist. passim. s Reddie, quoted by Hurd, Law of Freedom and Bondage, i. 46. the law of Rome itself. Gaius says (Inst. i. § 1) 'quod naturalis ratio inter omnes homines constituit, id apud omnes populos peræque custoditur, vocaturque jus gentium, quasi quo omnes gentes utuntur.' Ulpian says (frag. i. 1, § 4) 'jus gentium est quo gentes humanæ utuntur." These common usages of nations may run through all the fields of law, and so will include some rules of the international code. But the two evidently cover different ground, and the civil law never distinctly contemplates a law of nations in the modern sense. § 10. lex naturæ. It is important, again, not to confound international law with natural law—or, as it has been variously called, jus Different from naturale, lex naturalis, and lex naturæ. Jus naturale jus naturale or is the product of natural reason, and ought, since men are alike in their sense of justice, to be everywhere substantially the same. According to Gaius and most other Roman lawyers, it is not different from jus gentium, as already defined. But Ulpian and others make a distinction between the two, which has passed into the institutes of Justinian, without, however, influencing Roman law. To them jus naturale is that in which men and animals agree-the law stamped on free animate beings. Savigny thus explains their views: There was a time, we may conceive, when men acknowledged only those relations which are common to man and beast, when they followed natural affections and impulses in all freedom. This was the reign of jus naturale. To this succeeded an age of founding states, when slavery, private property, and obligations were introduced, and introduced everywhere alike. This was the jus gentium. At last jus was developed in each state in its own peculiar way by modifying old institutions, or setting up new ones.' § 11. Grotius. Modern writers have retained the term in an altered signification. Grotius (i. 1, § 10) defines it to be 'dictatum Definition of jus rectæ rationis, indicans actui alicui, ex ejus conve- naturale by nientia aut disconvenientia cum ipsa natura rationali ac sociali, inesse moralem turpitudinem aut necessitatem moralem,2 ac consequenter ab auctore naturæ Deo aut vetari aut præcipi.' Grotius thus uses the term to include morality and jus, as the foundation of jus voluntarium, that is, as the standard to which law civil or international ought to be conformed. But existing law may differ widely from it. 1 System des heut. röm. Rechts, i. 415. 2 i.e. a morally binding force. Hartenstein, in his valuable essay on the work of Grotius (Abhandl. der Leipz. Gesellsch. i. 504, 509), reduces the uses made by § 12. rale and interna Puffendorf's work on the law of nature and nations differs, to Puffendorf con- his disadvantage, from that of Grotius, in making founds jus natu- little account of usage and voluntary jus. Accordtional law. ing to Grotius, the law of nations is jus illud, quod inter populos plures aut populorum rectores intercedit, moribus et pacto tacito introductum. Puffendorf, as Mr. Wildman says,1 ' entirely denies the authority of general usage; and his doctrine, putting aside the mass of words with which he has encumbered it, amounts to this: that the rules of abstract propriety, resting merely on unauthorised speculations, and applied to international transactions, constitute international law, and acquire no additional authority, when by the usage of nations they have been generally received and approved of. So that the law of nations, according to Puffendorf, ends where, according to Grotius, it begins.' Thus Puffendorf commits the faults of failing to distinguish sufficiently between natural justice and the law of nations; of spinning the web of a system out of his own brain, as if he were the legislator for the world; and of neglecting to inform us what the world actually holds to be the law by which nations regulate their intercourse. Probably he was led into this by not discriminating clearly between the jus gentium of the Romans and the jus inter gentes of modern publicists. in international cies. § 13. An opposite course to this is to exhibit international law in Positive method its positive form, as it lies in the practice and underlaw. Its deficien- standing of a certain group of nations, either without reference to any jural or moral standard, or with recourse to moral considerations only now and then in disputed cases. This is a safe method, but narrow; and almost takes away scientific character from the subject-matter to which it is applied. What would municipal law be worth, if it did not point back to eternal right, and if by tracing it to its source it might not be made purer and more righteous? If international law were not made up of rules for which reasons could be given, satisfactory to man's intellectual and moral nature; if it were not built on principles of right, it would be even less of a science than is the code which governs the actions of polite society. Grotius of the term jus naturale to these three heads: (1.) To the general obligation to satisfy moral claims, especially the more definite claims of jus and equity. (2.) To the claims or rights which grow out of the nature of man, and would be acknowledged in an incorrupt society, were there no organised state. (3.) To certain effects and results of acts of human will. Thus, Grotius would say, man's will originated property, but when once property was introduced, jus naturale indicated that it is wrong for one to take what is another's without his consent. 1 Institutes of International Law, i. 28. § 14. able into con A very narrow foundation is laid for this science by those who would build it on the obligation to keep express or International tacit contracts. In every contract it may be asked law not resolvwhether the parties have a right to act at all, and if tract obligation. so, whether they can lawfully enter into the specific relations which the contract contemplates. Can two nations agree lawfully to destroy the political life of a peaceful neighbour, and divide its territories between them? We look beyond a contract for its moral grounds. It is true, indeed, that a law controlling independent sovereigns can only become such by their free consent; it must, as we have seen, be voluntary. But this code of voluntary rules cannot for that reason be arbitrary, irrational, or inconsistent with justice. § 15. law. There are, then, always two questions to be asked; the first, and most important, What is the actual understand- The two aspects ing and practice of nations? otherwise we have a of international structure that floats in the air, subjective speculation, without authority; and the second, On what rational and moral grounds can this practice be explained and defended? otherwise it is divorced from truth and right, mere fact only being left behind. Jural grounds of law. But what are the rational and moral grounds of international law? The same in general with those on which the rights and obligations of individuals, in the state, international and of the single state towards the individuals of which it consists, repose. If we define natural jus to be the science which from the nature and destination of man determines his external relations in society, both the question, What ought to be the rights and obligations of the individual in the state? and the question, What those of a state among states ought to be? fall within this branch of science. That there are such rights and obligations of states will hardly be doubted by those who admit that these relations of natural justice exist in any case. There is the same reason why they should be applied in regulating the intercourse of states, as in regulating that of individuals. There is a natural destination of states and a divine purpose in their existence, which make it necessary that they should have certain functions and powers of acting within a certain sphere, which external force may not invade. It would be strange if the state, that power which defines rights and makes them real, which creates moral persons or associations with rights and obligations, should have no such relations of its own-should be a physical and not a moral entity. In fact, to take the opposite ground would be to maintain that there is no right and wrong in the intercourse of states, and to leave their conduct to the sway of mere convenience. (§ 2.) law. $16. But there are moral relations, also, which are not relations of Moral grounds of justice, and which give rise to international morality. international It may be, to say the least, that nations have duties and moral claims, as well as rights and obligations. In matter of fact, some of these are generally acknowledged by nations, and have entered into the law of their intercourse, as, for example, the duty of comity and that of humanity. These relations were called by the older writers imperfect rights and obligations, not because the moral ground for them is incomplete, but because the right in particular cases cannot be ascertained, and therefore ought not to be enforced, nor the violation of right regarded as an injury. Several recent writers give to them the name of duties and moral claims, an example which we shall follow in this work.' § 17. Among the jural principles or foundations of international law, we name Particular rights 1. The obligation lying on the state to protect the individuals who compose it,2 not only from domestic, but also and obligations from foreign aggression. This obligation emanates of nations. immediately from the prime function and end of a state, and is limited by the rightfulness of the subject's conduct in his intercourse with the stranger. 2. Those qualities or rights which are involved in the existence of the state. These may be called rights of sovereignty simply, or may be ramified into rights of sovereignty, independence, and equality. The exercise of these rights and the right of self-protection may, together, be embraced under the head of rights of self-preservation. (§ 37.) 3. Those rights which the state has in common with individuals or with artificial persons, as the right of property, that of contract, and that of reputation. 4. The right which arises when the free exercise of the state's powers above mentioned is impeded, that is, the right of redress, 1 Mr. Wildman observes that the phrase "moral claim" at once conveys the idea which Puffendorf and Vattel have employed countless pages to confuse.' (I.4.) Dr. Whewell uses this term in his Elements of Morality and Polity. He also uses the terms jus and jural, which were first employed by Dr. Lieber. 2 The English language wants a term besides citizen and subject, more general than either, and without the idea contained in the latter of being under the control of an individual. In this work I use subject, for want of a better word, to denote all who are under the law; and sovereign, that in which the sovereign power resides, whether an individual or a nation. |