they followed natural affections and impulses in all freedom. This was the reign of jus naturale. To this succeeded an age of founding states, when slavery, private property, and obligations were introduced, and introduced everywhere alike. This was the jus gentium. At last jus was developed in each state in its own peculiar way by modifying old institutions, or setting up new ones.” naturale by Gro tius. § 11. Modern writers have retained the term in an altered siguiDefinition of jus fication. Grotius (I. 1, § 10) defines it to be “dic tatum rectæ rationis, indicans actui alicui, ex ejus convenientia aut disconvenientia cum ipsa natura rationali ac sociali, inesse moralem turpitudinem aut necessitatem moralem,* ac consequenter ab auctore naturæ Deo aut vetari aut præcipi." Grotius thus uses the term to include morality and jus, as the foundation of jus voluntarium, that is, as the standard to which law civil or international ought to be conformed. But existing law may differ widely from it. Puffendorf con founds jus natu law. $12. Puffendorf's work on the law of nature and nations differs, to his disadvantage, from that of Grotius, in makturale and intern. ing little account of usage and voluntary jus., According to Grotius, the law of nations is jus illud, quod inter populos plures aut populorum rectores intercedit, moribus et pacto tacito introductum. Puffendorf, as Mr. Wildman says,† “entirely denies the authority of general usage; and * I. e. a morally binding force. Hartenstein, in his valuable essay on the work of Grotius, (Abhandl. der Leipz. Geselsch. i. 504, 509) reduces the uses made by Grotius of the term jus naturale to these three heads: (1.) To the general obligation to satisfy moral claims, especially the more definite claims of jus and equity. (2.) To the claims or rights which grow out of the nature of man, and would be acknowledged in an incorrupt society, were there no organized state. (3.) To certain effects and results of acts of human will. Thus, Grotius would say, man's will originated property, but when once property was introduced, jus naturale indicated that it is wrong for one to take what is another's without his consent. + Institutes of International Law, I. 28. his doctrine, putting aside the mass of words with which he has encumbered it, amounts to this; that the rules of abstract propriety, resting merely on unauthorized speculations, and applied to international transactions, constitute international law, and acquire no additional authority, when by the usage of nations they have been generally received and approved of. So that the law of nations, according to Puffendorf, ends, where according to Grotius it begins." Thus Puffendorf commits the faults of failing to distinguish sufficiently between natural justice and the law of nations; of spinning the web of a system out of his own brain, as if he were the legislator for the world; and of neglecting to inform us what the world actually holds to be the law by which nations regulate their intercourse. Probably he was led into this by not discriminating clearly between the jus gentium of the Romans and the jus inter gentes of modern publicists. cases. § 13. in intern. law. An opposite course to this is to exhibit international law in its positive form, as it lies in the practice and Positive method understanding of a certain group of nations, either Its deficiencies. without reference to any jural or moral standard, or with recourse to moral considerations only now and then in disputed This is a safe method, but narrow; and almost takes away scientific character from the subject-matter to which it is applied. What would municipal law be worth, if it did not point back to eternal right, and if by tracing it to its source it might not be made purer and more righteous? If international law were not made up of rules for which reasons could be given, satisfactory to man's intellectual and moral nature; if it were not built on principles of right; it would be even less of a science than is the code which governs the actions of polite society. $14. A very narrow foundation is laid for this science by those who would build it on the obligation to keep ex- Intern. law not press or tacit contracts. In every contract it may contract obligabe asked whether the parties have a right to act at resolvable into tion. all, and if so, whether they can lawfully enter into the specific relations which the contract contemplates. Can two nations agree lawfully to destroy the political life of a peaceful neighbor, and divide its territories between them? We look beyond a contract for its moral grounds. It is true, indeed, that a law controlling independent sovereigns can only become such by their free consent; it must, as we have seen, be voluntary. But this code of voluntary rules cannot for that reason be arbitrary, irrational, or inconsistent with justice. § 15. There are, then, always two questions to be asked; the first, The two aspects and most important, What is the actual underof intern. law. standing and practice of nations? otherwise we have a structure that floats in the air, subjective speculation, without authority; and the second, On what rational and moral grounds can this practice be explained and defended? otherwise it is divorced from truth and right, mere fact only being left behind. Jural grounds of intern, law. But what are the rational and moral grounds of international law? The same in general with those on which the rights and obligations of individuals, in the state, and of the single state towards the individuals of which it consists, repose. If we define natural jus to be the science, which from the nature and destination of man determines his external relations in society, both the question, What ought to be the rights and obligations of the individual in the state?, and the question, What those of a state among states ought to be? fall within this branch of science. That there are such rights and obligations of states will hardly be doubted by those, who admit that these relations of natural justice exist in any case. There is the same reason why they should be applied in regulating the intercourse of states, as in regulating that of individuals. There is a natural destination of states, and a divine purpose in their existence, which make it necessary that they should have certain functions and powers of acting within a certain sphere, which external force may not invade. It would be strange if the state, that power which defines rights and makes them real, which creates moral persons or associations with rights and obligations, should have no such relations of its own, should be a physical and not a moral entity. In fact, to take the opposite ground would be to maintain that there is no right and wrong in the intercourse of states, and to leave their conduct to the sway of mere convenience. (§ 2.) & 16. But there are moral relations, also, which are not relations of justice, and which give rise to international Moral grounds of morality. It may be, to say the least, that nations intern law. have duties and moral claims, as well as rights and obligations. In matter of fact, some of these are generally acknowledged by nations, and have entered into the law of their intercourse, as, for example, the duty of comity and that of humanity. These relations were called by the older writers imperfect rights and obligations, not because the moral ground for them is incomplete, but because the right in particular cases cannot be ascertained, and therefore ought not to be enforced, nor the violation of right regarded as an injury. Several recent writers give to them the name of duties and moral claims, an example which we shall follow in this work.* $ 17. Among the jural principles or foundations of international law, we name and obligations 1. The obligation lying on the state to protect Particular rights the individuals who compose it, not only from of nations. domestic, but also from foreign aggression. This obligation * Mr. Wildman observes, that "the phrase 'moral claim' at once conveys the idea which Puffendorf and Vattel have employed countless pages to confuse." (I. 4.) Dr. Whewell uses this term in his Elements of Morality and Polity. He also uses the terms jus and jural, which were first employed by Dr. Lieber. † The English language wants a term besides citizen and subject, more general than either, and without the idea contained in the latter, of being under the control of an individual. In this work I use subject, for want of a better word, to denote emanates immediately from the prime function and end of a state, and is limited by the rightfulness of the subject's conduct in his intercourse with the stranger. 2. Those qualities or rights which are involved in the existence of the state. These may be called rights of sovereignty simply, or may be ramified into rights of sovereignty, independence, and equality. The exercise of these rights and the right of self-protection may, together, be embraced under the head of rights of self-preservation. (§ 37.) 3. Those rights which the state has in common with individuals or with artificial persons, as the right of property, that of contract, and that of reputation. 4. The right which arises when the free exercise of the state's powers above mentioned is impeded, that is, the right of redress, near to which lie the questionable rights of punishment and of conquest. Inasmuch as rights and obligations are correlative, there is Obligations and an obligation lying on every state to respect the rights correlative. rights of every other, to abstain from all injury and wrong towards it, as well as well as towards its subjects. These obligations are expressed in international law. Observations on 1. Right of Reputation? $ 18. Most of the above enumerated powers of states certain rights. are plain, but one or two need a little explanation. 1. The right of reputation. This right when viewed in relation to individuals, seems to consist of two parts, the one objective,—the right to a good name, the other subjective,-the right of exemption from insult and causeless wounding of the feelings. Corresponding to these rights are the obligations to respect a man's reputation, and to refrain from wounding his feelings by aspersions on his character. These rights are generally blended, but may exist apart; for instance, a man may insult another, or make false charges against him, when no one else knows of it. These rights, but all who are under the law; and sovereign, that in which the sovereign power resides, whether an individual or a nation. |