positive law-this also is dependent to a great degree upon their correct estimate of rights and obligations.

§ 2.

Nations or organized communities of men differ from the individual men of a state, in that they are self-governed, that no law is imposed on them by any external human power, but they retain the moral accountable nature, which must govern the members of a single society. They cannot have intercourse with one another without feeling that each party has rights and obligations. They have, as states, a common nature and destination, whence an equality of rights arises. And hence proceeds the possibility of a law between nations which is just, as expressing reciprocal rights and obligations, or just as expressing a free waiver of the rights which are by all acknowledged, and which may also embody by mutual agreement rules defining their more obvious claims and duties, or aiming to secure their common convenience and welfare. (Comp. § 27.)

This law of intercourse between nations has been united with political law, or the doctrine concerning the constitution of the state and the relations of the government to the people, under the head of public law, as opposed to private, or to the system of laws within the state, by which the relations of its individual members are defined and protected.* And yet there is a branch of this law which has both a private and a public character,—private as relating to persons, and public as agreed upon between nations. This law is now extensively called international law.

International

law in the widest sense.

§ 3.

International law, in a wide and abstract sense, would embrace those rules of intercourse between nations,) which are deduced from their rights and moral claims; cr in other words, it is the expression of the jural and moral relations of states to one another.

* Comp. for example, Klüber, §2, and for the next remark Hurd's Law of Freedom and Bondage, § 25. The Germans excel us in the neatness of their divisions of jural science. e. g. Öffentliches recht is divided into Staatsrecht and Völkerrecht.

According to this definition, if we could once find out what are the rights and obligations, the moral claims and duties of nations as such, by mere deduction, the principles of this science would be settled. But such an abstract form of the science, commanding general assent, neither has appeared, nor is likely to appear. The advantage of separating international law in its theoretical form from the positive existing Code, depends not on the possibility of constructing a perfect code according to a true theory, but on the fact, that right views of justice may serve as a touchstone of actual usages and regulations; for in all jural science it is most important to distinguish between the law as it is, and as it ought to be. This same distinction is made by those who discriminate between international law, the positive admitted law, and international morality. But the latter term must be objectionable to those at least who make a distinction between morals and jus. The law of nations, both as it is and as it ought to be, does not confine itself within the jural sphere.

§ 4.

more limited

In a more limited sense international law would be the system of positive rules, by which the nations of Intern, law in a the world regulate their intercourse with one an- sense. other. But in strictness of truth this definition is too broad, for there is no such law recognized as yet through all nations. Neither have the more civilized states of the East agreed with those of Europe, nor the states of antiquity with those of modern times, unless it be in a few provisions, which together would constitute an exceedingly meagre code.

$5.

Coming within narrower limits, we define international law to be the aggregate of the rules, which Chris- Actual positive tian states acknowledge, as obligatory in their relations to each other, and to each other's subjects. The rules

intern. law

* Comp. an article attributed to Mr. Senior in Edinburgh Review, No. 156, for April, 1843.

also which they unite to impose on their subjects, respectively, for the treatment of one another, are included here, as being in the end rules of action for the states themselves. Here notice,

1. That as Christian states are now controllers of opinextending beyond ion among men, their views of law are beginChristendom, ning to spread beyond the bounds of Christendom, as into Turkey and China.

2. That the definition cannot justly be widened to include but not observed the law which governs Christian states in their towards savages, intercourse with savage or half-civilized tribes; or even with nations on a higher level, but lying outside of their forms of civilization. In general, towards such nations, they haye acted on the principle that there is no common bond of obligation between them and the other party, observing so much of international law as suited their policy or sense of right at the time. Especially towards savage tribes they have often acted with flagrant selfishness, as if they feared no retribution from a weaker party, or were beyond the reach of public opinion. (Comp. § 136, and § 204.)

3. The rules of action agreed upon by two or more Christian states, but not by all, or the most of them, form no part of international law; although they often illustrate it, and often pave the way for the admission of new modifications of it.

4. Nations, it is conceded by all, have obligations towards foreigners, who are not constituent parts of any nation; or, at least, of a nation by which the law of nations is acknowledged. The consideration of the rights, or moral claims of such persons, belongs to international law, not as the system of rules observed between nations,, but as involving obligations which all nations, or all Christian nations, acknowledge.

law. Its volun

§ 6.

The way in which positive international law becomes such, Genesis of intern. shows that it must be progressive and somewhat tary nature. uncertain. Right, as Heffter remarks,* is either guaranteed, under the protection and force of a competent

*Völkerrecht, § 2.

power, (as we see it in the state,) or free, that is, the individual power or person must protect and preserve it for himself. The law of nations is of this latter kind. First of all, the single state sets up for itself its views of right against other states. If it gives up its isolation, it freely forms in intercourse with other states a common right or law, from which now it can no longer set itself free, without offering up, or at least endangering, its peaceful relations, and even its exist

ence.

Thus a law of nations can grow up only by the consent of the parties to it. It is, therefore, more a product of human freedom than the municipal law of a particular state. Its natural progress is to start from those provisions which are necessary in conducting political and commercial intercourse, while it leaves untouched, for a time, many usages which are contrary to humanity and morality; until, with the advance of civilization, the sway of moral ideas becomes stronger. It grows into a system of tolerable justice and humanity after, perhaps long after, municipal legislation has of later growth worked itself clear of many faults and errors. For although both branches of law have the same foundation of justice, and although a state, like Rome, for example, with an advanced system of internal laws, ought to have its views of international obligations purified; yet, as states have diverse interests and opinions, it takes time before a seeming interest can be given up, even after right is acknowledged to be on the other side; and it takes time to bring the views of nations to a common standard.*

than state law.

* A state in the lower grade of civilization, like a savage, becomes conscious of its separate existence in the act of resistance, or of defending that existence. Such self-preservation on the part of the individual arouses, it may be, no better feeling than that of independence and self-reliance; in the state it helps the members to feel their unity and dependence, and the priceless value of the state itself. Hence war is a moral teacher: opposition to external force is an aid to the highest civic virtues. But if this were all there could be no recognition of obligations towards foreigners, no community of nations, in short, no world. These conceptions grow up in man, from the necessity of recognizing rules of intercourse, and intercourse is itself a natural necessity from the physical ordinances of God. Self-protection and

arose in Christian states.

$7.

The same causes which have enabled Christian states to Why this law reach a higher point of civilization than any other, have made them the first to elaborate a system of international law. These causes have been principally, (1.) the high moral standard of the religion which they in common professed,—a religion which cultivates alike the sentiments of justice and humanity; (2.) the inheritance which came to them of philosophy and legal science from the classical states of antiquity, and especially the system of Roman law; and (3.) a close historical connection since the times of the Roman empire, favoring the spread of common ideas. Thus the same religious and jural views, and a similar historical development, give rise to a community of nations, where it is comparatively easy for common usages to grow up. No such common feeling, but quite the opposite, existed between them and their Mohammedan neighbors; and hence the latter were long shut out from the pale of their international law.

perfect.

Greece and

Rome.

$8.

In other parts and ages of the world laws have grown up, Intern. law else in groups of nations, for the regulation of their where quite im- conduct to each other. But these have all been partial, and were never constructed into a science. The classic states of antiquity had, at the best, a very simple and imperfect body of such rules and usages. Ambassadors and heralds had a sacred character; truces and treaties were acknowledged to be obligatory; war was usually begun with an open declaration, and, perhaps, with solemn formalities; but when once begun, it was waged with little rule or check. The Greeks were favorably situated for the development of a Hellenic international law; for, like the Christian states of modern times, they formed a circle of communities, standing at nearly the same

Greece.

intercourse are thus the two sources of international law; they make it necessary, and the conception in man of justice, of rights and obligations, must follow, because he has a moral nature.