357, n. 1

ADDITIONAL CASES.

Alexander's Cotton i. 78, n. 2, 91, n. 1, | Hesketh v. Blanchard

Hill v. Butler

King of Spain v. Machado
v. Oliver
King's Proctor v. Daines

Magwood v. Johnston
Marie Joseph, The

iii. 33 a, 34 b iv. 476 b

i. 297 e

i. 297 e

iv. 517 b

ii. 164 d

ii. 482, n. 1,

549, n. 1

iii. 199 a

Clapham v. Langton

iii. 288, n. 1

Mentor, The
Miles's Will

iv. 515 c

PART I.

OF THE LAW OF

OF NATIONS.

LECTURE I.

OF THE FOUNDATION AND HISTORY OF THE LAW OF NATIONS.

WHEN the United States ceased to be a part of the British 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 cognizance of all matters arising upon the law of nations, and they professed obedience to that law, "according to the general usages of Europe." (a) By this law we are to understand that code of public instruction, which defines the rights and prescribes the duties of nations, in their intercourse with each other. The faithful observance of this law is essential to national

(a) Ordinance of the 4th December, 1781, relative to maritime captures. Journals of Congress, vii. 185. The English judges have frequently declared that the law of nations was part of the common law of England. Triquet v. Bath, 3 Burr. 1478; Heathfield v. Chilton, 4 ib. 2015; and it is well settled that the common law of England, so far as it may be consistent with the constitutions of this country, and remains unaltered by statute, is an essential part of American jurisprudence. Vide infra, 342, 472, 473.

1 For other definitions, see Wheat. pt. 1, ch. 1, Dana's note, 9; Aust. Jur. lect. 6, 3d ed. 231.

International Law is probably the better title. Wheat. Dana's note, 7; Woolsey, Introd. § 9; Abdy's Kent, 4; Twiss, Law of Nat. pt. 1, § 85; Cf. Aust. Jur. lect. 5, 3d ed. 177; post, 51, n. (b). The jus gentium of the Roman lawyers is now understood to have meant something very different from the modern international law. It

...

was "a collection of rules and principles, determined by observation to be common to the institutions which prevailed among the various Italian tribes." "The jus naturale, or Law of Nature, is simply the jus gentium, . . . seen in the light of a peculiar theory.. . The confusion between Jus Gentium, or law common to all nations, and international law is entirely modern." Maine, Anc. Law, ch. 3, Am. ed. pp. 48, 50. See Aust. Jur. lect. 31; Gaii Inst. 1, § 1.

character, and to the happiness of mankind. According to the observation of Montesquieu, (b) it is founded on the principle,

that different nations ought to do each other as much good *2 in peace, and as little harm in war, as possible, without in

jury 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 been considered by some as a mere system of positive institutions, 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 obligations 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 from the same principles of right reason, the same views of the nature and constitution of man, and the same sanction of Divine revelation, as those from which the science of morality is deduced.

(b) L'Esprit des Loix, b. 1, c. 3.

These chapters of Austin and Maine show the derivation of the theory in question from doctrines of the Stoic philosophy, which were held by many of the Roman jurists. See also Heinecc. Elem. Juris. Civ. sec. ord. Pand. 1. 1. § 12. The origin of the modern law of nations is well explained in Mr. Maine's fourth chapter.

Austin was further of the opinion, which he sustained by arguments of great force, that international law, so called, is not properly law at all, but a branch of morality, as it does not consist of commands propounded by a political superior to a political inferior and enforced by

penalties to be incurred in case of disobedience. Aust. Jur. lect. 5 & 6, sup. ; 6 Am. Law Rev. 340. But other writers have thought this too narrow a view. Manning's Law of N. 4; Twiss, Law of N. pt. 1, §§ 96, 97; 5 Am Law Rev. 4, 5; 6 Am. Law Rev. 723; 1 Law Mag. & Rev. N. s. 189; April, 1872. Of course, when the principles of international law are adopted by statute or judicial decision, they become part of the municipal law of that jurisdiction, and are binding as such. The question is, whether the sovereign power can properly be said to be subject to law.