But he principally relied on the civil law, on which great part of the law of nations is founded (x). The civil law, says Sir Robert Wiseman, an eminent practitioner in the Court of Admiralty, is an auxiliary supplement, or a knowledge assisting in the administration of right and justice between nation and nation, where a local law is of no authority at all. Grotius, the ornament of his age for learning and wisdom, undertaking in his most singular book, De jure belli et pacis, to set down the several heads of that law which serves to direct those great transactions of peace and war between nation and nation, and to reconcile their differences, professes to have borrowed towards the perfecting of that admirable work much from the books of the civil law; because, saith he, they often make very clear discoveries of the law of nature, and do give frequent instances both of that law and of the law of nations also. So that although whatever we read in the text of the civil law was not intended by the Roman Legislators to reach or direct beyond the bounds of the Roman empire; neither could they prescribe any law to other nations which were in no subjection to them; yet, since there is such a strong stream of natural reason continually flowing in the channel of the Roman laws, what should hinder but that the same general rule of justice and dictates of reason may be also fitly accommodated to foreigners dealing with one another (as it is plain they have been by the civilians of all ages) as to those of one and the same nation: when one common reason is a guide and a light to both? All those writers that handle and treat of those controversial things, which frequently come to be disputed between one nation and another, as they are all civilians; so though they do make use of other authorities besides, yet the strongest and most convincing arguments that they bring to resolve them by,

(1) Per Sir W. Scott, arg. Maria, 1 Rob. 363; Kent Comm. i. pp. 11, 12.

are fetched from the general rules of equity and right reason set down in the civil law. And moreover by, as it were, a general consent of nations, there is an appealing to and a resting in the voice of the civil law in these cases between nation and nation. If we will deal in foreign affairs, and converse with foreign people, we must be contented to stand and submit ourselves to such a law, how foreign soever, as is proper for those very matters, and to which other nations do refer themselves; which is the civil law, that nature hath breathed out itself in, and nations have consented unto (y). Although the questions we are considering, says Bynkershoek, depend, not upon the Roman law, but upon the law of nations, it may not be improper to state the principles of the Roman law, for in listening to that law, we appear to be listening to the voice of all nations (z). But the authority of the Roman law prevails only so far as it has been adopted into the usage of nations. If the Roman lawyers had laid down their rules as part of the law of nations, international law would not be fixed thereby. If other nations following a different mode of reasoning, have adopted a different rule, which has prevailed in the general usage of nations, the law of nations is settled by that rule (a).

Admirable as the work of Grotius is, it must be confessed that it is deficient in method. He neither observes the divisions, of which his subject is capable, nor abstains from digressions that have little or no connexion with it. His first

(y) Wiseman Excell. of Civil L. pp. 311, 103—4, 9—306. (2) Bynk. F. L. vi. Quamvis non de populi Romani, sed de gentium jurisprudentiâ agamus; non tamen absque erit de jure Romani quædam præmonuisse cum qui id audit vocem fere omnium gentium videatur audire.

(a) F. L. vi. p. 155. Quin et si quod Romani dixerunt, plane et rotundo ore dixissent de legatis externarum gentium, non inde continuo efficeretur jus gentium. Sic illi saperent rationem suam secuti, si aliter saperent aliæ gentes aliam rationem secutæ, earumque sensus prevaleret; id esset jus gentium, de quo de foro legatorum finienda esset quæstio.

book contains disquisitions on the lawfulness of war with reference to the precepts of religion, the nature of government, the right of resistance, the rules of conscience as to the defence of property and life, and the exigencies of necessity; the rights and duties that arise from domestic relations; the nature and principles of corporations; the rules of legal succession, of equitable restitution, of contracts, promises, and oaths, and of the reparation of injuries. Many of these disquisitions are curious and valuable in themselves, and in the course of them he has anticipated many modern doctrines as to freedom of trade (b), impunity of opinions (c), liberty of conscience (d), and the purposes and proportions of punishment (e). It must be observed, however, that his work is divided into two parts. In the first, which is continued to the eighteenth chapter of the second book, he treats of the law of nature, and only mentions incidentally the law of nations. The remainder of the work is appropriated to international law, and is less interrupted by these digressions. Grotius has not escaped the confusion which inaccurate language always entails. This has arisen principally from his use of the phrase jus naturæ. In legal phraseology it would be difficult to find two words so vague in separate signification, and in combination so indefinite in these. The consequence is, that his division of law has two logical defects. It comprises more than its subject, and its branches are not distinct. He first divides law into natural and voluntary. Voluntary law he divides into divine and human; human law into municipal and international (ƒ). Of the law of nature (which, he says, may in one sense be termed divine, as it proceeds from principles implanted in us by the divine will) he gives the following account. The wellbeing of society is the

(b) ii. 2, xiii. v.

(c) ii. 20, xviii.

(d) ii. 20, xliii. 1.
(e) ii. 20, 1 to 37.

(ƒ) Proleg. 6, et seq. l. i. 1, x. xiv. xv.

source of law, or right properly so called, which consists in giving to every man his own, in restoring it, if it has been taken from him; in the performance of engagements; the reparation of injuries; and the infliction of punishment where punishment is due (g). From this strict sense of the term, another and less proper sense has been derived, whereby men are required to exercise a sound discretion in estimating the character of their actions, and not to be led by fear, or pleasure, or impulse to such as are pernicious in their effects (h) This sense of the phrase also includes the subordination of society by the classification of its members according to their merits or circumstances (i). The law of nature is the dictate of sound reason, imputing to actions moral obligation or moral turpitude, as they are suitable or repugnant to the nature of a rational and social being, and consequently commanded or forbidden by God, the author of nature (j). The law of nature, according to this account of it, consists of the rules of natural justice and abstract propriety. These rules acquire the force of law when sanctioned by public authority or the general will of nations. When so sanctioned they do not form a separate branch, but fall under the head of municipal or international law, according to the nature of the sanction they receive. When not so sanctioned, they fall under the head of morals, and form no part of law. Puffendorf's view of the law of nations was far less accurate than that of Grotius. His great work is a treatise on the law of nature: in other words, a disquisition on the whole duty of man. The manner in which it has been coupled with that of Grotius, shews greater familiarity with its title than with its contents. Many matters connected with international law are incidentally discussed in various parts of his work: but of seventy-four chapters, six only are appropriated to that

(g) Proleg. 8.
(h) Proleg. 9.

(i) Proleg. 10.

i. i. x. i.

subject, and in those it is superficially treated, in the opinion of Barbeyrac, because he found the subject exhausted by Grotius,

In order to elucidate the difference of the doctrines of Grotius and Puffendorf as to the foundations of international law, it may be proper to give a short account of the view taken by the latter of the law of nature. Law, according to Puffendorf, is a rule of action imposed by the will of a superior, and is either divine or human. As the will of God may be promulgated either by his works or by his word, divine law is either natural or revealed. The law of nature is a rule of action sanctioned by the will of God to be collected from the constitution of human nature, and the consequent tendency of actions to promote or impair human happiness. Whatever tends to promote the wellbeing of society is commanded, whatever tends to obstruct or impair it is prohibited by the law of nature. It is founded on utility; not that fluctuating and partial utility, which suits the occasional and transient interest of particular persons at particular seasons, but on that which is general and permanent, and constitutes the wellbeing of all persons at all times (k). It is an immutable and universal law; immutable, because unlike municipal laws it is not liable to arbitrary change; universal, because all mankind in all ages are equally bound by it. The law of nations, according to Puffendorf, is the law of nature applied to international transactions.

Hence it appears that the law of nations, according to Puffendorf, terminates in nothing different from mere moral obligation, or the rules of abstract propriety, and consequently international law in his view of it amounts to nothing more than international morality. The obligation of international custom he peremptorily denies, and asserts that the violation of it is a mere rudeness and incivility (7). In short, he con(1) Puff. ii. 3, xxiii.

(k) Puff. ii. 3, xi.