ceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.” (1)* (1) Marshall's Life of Washington, II. ch. XI. p. 404. [The conception of a "Law of Nature" and the doctrine of "Utility" alluded to in the present chapter, have been each subjected to very rigorous criticism since the appearance of the first edition of this work. The actual history of the expression "Law of Nature," as traced by Sir H. S. Maine, has been alluded to in a previous note (see p. 10). The latent idea which has given such a potency to the expression, is, no doubt, contained in a widely-diffused sentiment or belief to the effect that there exists somewhere an absolute code of moral rights and duties, however hard it may be to discover it, and however lengthy and tortuous may be the progress of any particular nation towards a general and public recognition of it. According to Aristotle's language, οἷον γὰρ ἑκαστόν ἐστι τῆς γενέσεως τελεσθείσης, ταύτην φαμὲν τὴν φύσιν εἶναι ἑκάστου, “ what every being is in its complete development, that is its nature" (Pol. I. 2). Nevertheless, though the conception of the existence of some absolute and ideal standard or canon of right has served most beneficent purposes as a stimulus to moral aspirations, and has contributed greatly towards the progressive formation of rules of right conduct between States, yet the term Nature is of itself so vague and indefinite that a violent reaction against the whole class of conceptions, with which the use of that term was implicated, was only what might have been looked for. Such a reaction exhibited itself in the Utilitarian theory of morality and in the critical philosophy of Bentham and his disciples, by whom the 66 [theory was mainly formulated and propagated. In the hands of Bentham and the two Mills, Utility (of a very rarefied and sublimated form indeed in the hands of Mr. J. S. Mill) was proclaimed to be not only the supreme test, but also the sole motive, of all right action whether on part of individual persons or of States. It would seem that Mr. Austin considered the principle of Utility valuable solely as supplying a test of the rightness of actions, while he looked elsewhere for the motive. Sir H. S. Maine, in his recent work on "Early Institutions" (Lecture XIII.), has endeavoured, with some success, to explain why Bentham attached such superlative value to the Utilitarian method. He says it was owing to Bentham's treating the formula of the "greatest happiness of the greatest number" as a "working rule of legislation," and as such alone originally conceived by himself. "Bentham " (says Sir H. S. Maine) "was in truth neither a jurist nor a moralist, in the proper sense of the word. He theorises not on law, but on legislation; when carefully examined, he may be seen to be a legislator, even in morals. This transfer of his working rule from legislation to morality seems to me the true ground of the criticisms to which Bentham is justly open as an analyst of moral facts." See also Mr. Henry Sedgwick's handling of the general topic in his recent important treatise on the "Method of Ethics."- ED.] Positive law of nations. Necessity for this law. Probability of its being coincident with utility. CHAPTER II. OF THE CUSTOMARY LAW OF NATIONS. BESIDES the obligations by which states are bound by the law of nature-obligations from which none can be exempt, and which are inseparable from their existence as communities of responsible agents-there are also national obligations arising from custom and convention. These latter obligations differ from the former, inasmuch as they originated, not in Divine law, but in human compact, either tacit or expressed. But, once existing and acknowledged as law, the obligation to conform to this positive law of nations is as indispensable as obedience to the law of nature. The Divine law commands the observance of the Positive law; and the latter cannot be disregarded without violating the former. Besides the great and obvious duties which the nature of mankind commands, there are a vast number of cases in which the interests of different states are concerned, which cannot be settled by any immediate deduction from the principles of justice, but in which it is indispensably necessary that some certain rule should obtain, to prevent the endless strife which must ensue if no common rule were acknowledged. Thus Utility, which might not have been able to dictate whether one course or another had better have been pursued originally, is nevertheless absolute in its demand of obedience to these Positive laws, when once instituted. The existence of these laws, and the fact of their actual acknowledgment by the powers of Europe, affords an à priori probability that they are really based on utility, having general convenience as the cause of their becoming current as rules of intercourse. Grotius goes so far as to apply the term Jus Gentium exclusively to the rules gathered from consent and practice, classing the deductions of reason under the term Jus Naturale. He employed, he tells us, "the testimony of philosophers, historians, poets, and orators; not because an ill-judged faith should be accorded to their assertions, which often are subservient to their sect, their argument, or their cause; but because that ought to be referred to some principle, which has been acknowledged as true by many persons at different times and places. This, in the subjects of our discussions, must be either a right deduction from the principles of nature, or some general consent; the former teaches us the law of nature, the latter, the law of nations." (Illa jus naturæ indicat, hic jus gentium). (1) This law of nations, Grotius afterwards adds, is proved in the same manner as the unwritten civil law, by constant usage, and by the opinion of authorities (usu continuo, et testimonio peritorum). (2) We have seen that Pufendorf denied the obligation of this customary law, and asserted that the law of nature was the only law really indispensable for the observance of states. (3) An opinion nearer to the truth than Pufendorf's is found in a work which will be afterwards examined in detail, Hübner's Treatise De la saisie des bâtimens neutres. Speaking of the laws resulting from usage, he says, "si l'on trouve ces derniers contraires à l'équité naturelle, ils ne peuvent jamais devenir obligatoires: s'ils sont indifférens à son égard, ils n'obligent que très imparfaitement : si, au contraire, ils lui sont conformes, ces usages deviennent sans contredit obligatoires; non (3) Ante, p. 32. (1) De Jure Prol. 40. [* See p. 236.] Customary law should be tested by the pas en tant que ce sont des usages, mais en vertu du code universel des nations qui les érige en devoirs." (1) This is not quite correct in its second clause; because, in indifferent matters, the observance of a settled rule is of such consequence as to make it a direct duty to conform to the usage of nations. But, with regard to the first proposition, it is clear that usages which violate the law of nature can never be obligatory upon mankind. It was by deriving the law of nations entirely from the usage of nations, that Grotius was misled into the law of nature. defence of practices which natural or divine law can never sanction. A reductio ad absurdum of this principle might be made by supposing it applied to savage tribes, and the law of nations, deduced from their practices in war, would sanction the torturing or devouring of captives. Living at a period when civilization was so little advanced that history was principally a record of barbarism, the precedents from which Grotius deduced his rules, were sometimes mere examples of ferocity. The condition of war, especially among the nations of antiquity and in the middle ages, was in great want of the check of the restraint imposed by the law of nature. The state of war is in itself a condition in which the violent passions of men are aggravated to the utmost, at the same time that there is most scope given for the outbursts of such tendencies; and among the men who choose the profession of the soldier, there has always existed, and formerly more than at a later period, a greater proportion to whom violence is welcome, or ferocity habitual, than among any other class. Precedents drawn from the practice of such men, acting under such circumstances, would naturally be expected to allow much cruelty; and it is in not testing, by the (1) De la saisie, &c. avant-propos, § 7. |