Interna tional law adopted by $ 29. As soon as a nation has assumed the obligations of international law, they become a portion of the law of the land to govern the decisions of courts, the conduct municipal. of the rulers and that of the people. A nation is bound to protect this part of law by statute and penalty as much as that part which controls the jural relations or in other ways affects the actions of individuals. Otherwise it is a dead letter; there is a want of faith towards foreign powers, and there is danger of quarrel ending in war. All Christian states have, it is believed, in this way sanctioned international law, so far as it seemed to them necessary. It is, says Blackstone, "adopted in its full extent by the laws of England; and whenever any question arises which is properly subject to its jurisdiction, it is held to be a part of the law of the land." "As being a part of the common law of England, the law of nations is adopted by our own law also, for it is well settled, that the common law of England, so far as it may be consistent with the Constitution of this country, and remains unaltered by statute, is an essential part of American jurisprudence." " 1 Parts of it, moreover, have received an express sanction from the Constitution and Statutes of the United States. § 30. The helps for ascertaining what international law is, or has been, may be derived principally from the following documents: Aids for knowing what inter national law is. 1. The sea laws of various ports or districts, which had a commercial importance in mediæval Europe. 2. The treaties in which a large number of important nations have had a part, as the treaty of Westphalia, the Congress of Vienna, and the recent treaty of Paris, in 1856. Other political treaties are evidences of an opinion entertained by the parties in regard to certain provisions of the law of nations; and that, whether they sanction these provisions or 11 Kent, Lect. 1. suspend their operation. Much the same thing may be said of treaties of commerce, which often touch on mooted questions of maritime law. A brief statement of the leading features of the principal political treaties since the Reformation constitutes the second appendix to this volume. 3. Judicial decisions, which often set forth in the clearest manner the state of the law as it is understood by the ablest legal authorities of a particular country, and which, although not always followed, command respect in other countries. The decisions of the English courts, especially of the Admiralty under Sir William Scott (Lord Stowell), although taking a view of neutral rights on the sea which is now becoming obsolete, are distinguished for their ability, and have had a great influence on opinion in this country. Many decisions of the Supreme Court of the United States involve points of international law, —a court, before which, originally, "all cases touching ambassadors, other public ministers, and consuls," and, ultimately, various questions affecting treaties and relations with foreign countries can be brought. 4. State papers on controverted points, such as those written in our own country by Jefferson, Hamilton, Webster, and Marcy. 5. Treatises on this branch of science, or on some title of it, some of which with reason, or by accident, have acquired a standing above others. A list of the most eminent textwriters may be found in the first appendix to this work. § 31. In tracing the progress of international law, that is of views or theories concerning it, we may notice several stages, more or less clearly defined, through which it has passed. 1. Among the ancients we have a recognition of right and wrong in the intercourse of states together with some rules regulating intercourse and some rules of humanity in war, — placed chiefly under the sanction of religion, but no separation of this branch of law from the rest, as a distinct department. (§ 8.) This period continued until after the revival of learning. In the Middle Ages the science was still undeveloped, but religious institutions and antipathies modified the practice of Christian states. (§ 8.) During the revival of learning, a spirit arose in Italy, which made light of all obligations between states, and almost deified successful wickedness. Soon after this, we perceive that the forerunners of Grotius, as Suarez, Ayala, and above all, Albericus Gentilis, are aware that a system of international law ought to be evolved, and are working out particular titles of it. (Append. I.) 2. With Grotius a new era begins. (§ 11, Append. I., C.) His great aim was practical, not scientific, it was to bring the practice of nations, especially in war, into conformity with justice. He held firmly to a system of natural justice between states, without, however, very accurately defining it. To positive law, also, originated by states, he conceded an obligatory force, unless it contravened this justice of nature. In setting forth his views, he adduces in rich abundance the opinions of the ancients, and illustrations from Greek and Roman history. The nobleness of his aim, and his claim to respect as the father of the science, have given to the treatise "De Jure Belli et Pacis " an enduring influence. 3. After Grotius there appear two tendencies. One is to disregard all that is positive and actual in the arrangements between nations, and to construct a system on the principles of natural law; in which way a law for states, differing from ethics and natural justice, is in fact denied. This tendency is represented by Puffendorf. (§ 12.) The other tendency was a reaction against this writer, and satisfied itself with representing the actual state of international law, as it exists by usage and treaty, without setting up or recognizing a standard of natural justice by its side. Bynkershoek and Moser (see Append. I., C.), with Martens and others in more recent times, are examples here. Many writers, however, treading in the steps of Grotius, regard natural justice as a source of right, with which the practice of states must be compared and brought into conformity, and which may not be neglected in a scientific system. § 32. There has been a general progress in the views of textwriters since the age of Grotius, and a substantial agreement between those of all nationalities at the same era. And yet minor differences are very observable. Some of the most striking of these are the differences between the English and the Continental doctrine, arising from the insular position of Great Britain, from her commercial interests, and her power on the sea. Thus we find her behind the Continent in respecting the sanctity of ambassadors until into the eighteenth century. (§ 96.) Thus also while her practice in land wars has been humane, her sea-rules and the decisions of her courts have in several ways borne hardly upon neutrals. It is worthy of notice that our courts have followed English precedents, while our Government, as that of a nation generally neutral, has for the most part leaned in its doctrines and treaties towards Continental views. § 33. Hitherto, as may be gathered from what has just been said, there is something of that same uncertainty and want of authority to be discovered in international law, which attends on other political and jural sciences. This is due to causes already noticed: (1) to the changes in the science growing out of changes in the intellectual and moral culture of successive generations; and (2) to the fact that states, according to their temporary or their permanent interests, have set up or followed different rules of action. Whether anything can be done, by means of an international code, to bring more certainty and precision into the science will be considered in the sequel. (§ 222 and onward.) § 34. In every branch of knowledge, the history of the branch is an important auxiliary to its scientific treatment. From the changes and improvements in the law of nations, it is evi History of international law; its import ance. dent that the history of this science both the history of opinion and of practice-is deserving of especial attention. It is a leading chapter in the history of civilization. It furnishes valuable hints for the future. Notwithstanding its dark passages, it is calculated to animate the friends of justice and humanity. It explains the present state of the science, and indicates the obstacles which have retarded its advance. Hence the value of such works as Laurent's "Histoire du Droit des Gens," which in three volumes embraces the East and the classical nations of antiqity, Ward's "Enquiry," embracing the period from the time of the Greeks and Romans to the age of Grotius, and Wheaton's history, which in a sense continues Ward's work down to the peace of Washington in 1842, is surpassed by that of few systematic treatises. Histories of treaties also are of great importance, as aids in understanding the treaties themselves, which are a principal source of international law. It will be one of our primary aims in this work, as far as our narrow limits permit, to append historical illustrations to the leading titles, in the hope of exhibiting the progressive character of the science, and of conferring a benefit on the student of history. It ought, however, to be remarked that historical precedents must be used with caution. History tells of crimes against the law of nations, as well as of its construction and its observance, of old usages or principles given up and new ones adopted. There is no value in the mere historical facts, apart from the reasons or pretexts for them, and from their bearings on the spread of justice and the sense of human brotherhood in the world. Method pur § 35. A method which aims to be practically useful in international law, must take notice of the great importance sued in this which questions pertaining to a state of war have work. in that science. In both peace and war the essential qualities of states their sovereignty and the like-must be exercised; but war suspends the operations of certain |