PART FIRST. DEFINITION, SOURCES, AND SUBJECTS OF INTER NATIONAL LAW. CHAPTER I. DEFINITION AND SOURCES OF INTERNATIONAL LAW. Origin of Internation § 1. THERE is no legislative or judicial authority, recognized by all nations, which determines the law that al Law. regulates the reciprocal relations of States. The origin of this law must be sought in the principles of justice, applicable to those relations. While in every civil society or State there is always a legislative power which establishes, by express declaration, the civil law of that State, and a judicial power, which interprets that law, and applies it to individual cases, in the great society of nations there is no legislative power, and consequently there are no express laws, except those which result from the conventions which States may make with one another. As nations acknowledge no superior, as they have not organized any common paramount authority, for the purpose of establishing by an express declaration their international law, and as they have not constituted any sort of Amphictyonic magistracy to interpret and apply that law, it is impossible that there should be a code of international law illustrated by judicial interpretations. The inquiry must then be, what are the principles of justice which ought to regulate the mutual relations of nations, that is to say, from what authority is international law derived. When the question is thus stated, every publicist will decide it according to his own views, and hence the fundamental differences which we remark in their writings. Natural § 2. The leading object of Grotius, and of his immediLaw defined. ate disciples and successors, in the science of which he was the founder, seems to have been, First, to lay down those rules of justice which would be binding on men living in a social state, independently of any positive laws of human institution; or, ast is commonly expressed, living together in a state of nature; and, Secondly, To apply those rules, under the name of Natural Law, to the mutual relations of separate communities living in a similar state with respect to each other. With a view to the first of these objects, Grotius sets out in his work, on the rights of war and peace, (de jure belli ac pacis,) with refuting the doctrine of those ancient sophists who wholly denied the reality of moral distinctions, and that of some modern theologians, who asserted that these distinctions are created entirely by the arbitrary and revealed will of God, in the same manner as certain political writers, (such as Hobbes,) afterwards. referred them to the positive institution of the civil magistrate. For this purpose, Grotius labors to show that there is a law audible in the voice of conscience, enjoining some actions, and forbidding others, according to their respective suitableness or repugnance to the reasonable and social nature of man. "Natural law," says he, "is the dictate of right reason, pronouncing that there is in some actions a moral obligation, and in other actions a moral deformity, arising from their respective suitableness or repugnance to the rational and social nature, and that, consequently, such actions are either forbidden or enjoined by God, the Author of nature. Actions which are the subject of this exertion of reason, are in themselves lawful or unlawful, and are, therefore, as such necessarily commanded or prohibited by God." (a) Natural Law identi § 3. The term Natural Law is here evidently used for cal with the those rules of justice which ought to govern the conduct law of God, of men, as moral and accountable beings, living in a social state, independently of positive human institutions, or Divine Law. (a) "Jus naturale est dictatum rectæ rationis, indicans actui alicui, ex ejus convenientiâ aut disconvenientiâ cum ipsâ naturâ rationali, inesse moralem turpitudinem, aut necessitatem moralem, ac consequenter ab auctore naturæ, Deo, talem actum aut vetari aut præcipi. "Actus de quibus tale extat dictatum, debiti sunt aut illiciti per se, atque ideo à Deo necessario præcepti aut vetiti intelliguntur." Grotius, de Jur. Bel. ac Pac. lib. i. cap. 1, § x. 1, 2. |