called the law of nations, as being common to all nations respectively in their several capacities (g). In the same sense the feudal system hath been designated the law of nations of the western world. Publicum The jus gentium was a branch of private law. jus est, quod ad statum rei Romanæ spectat: privatum, quod ad singulorum utilitatem: sunt enim quædam publice utilia, quædam privatim. Privatum jus tripartitum est: collectum etenim est ex naturalibus præceptis, aut gentium, aut civilibus. Ex hoc jure gentium introducta bella; discretæ gentes, regna condita: dominia distincta: agris termini positi: adificia collocata: commercium: emptiones venditiones; locationes conductiones; obligationes institutæ, exceptis quibusdam, quæ a jure civili introductæ sunt (h). The two phrases jus naturæ and jus gentium are used by the Roman lawyers almost indiscriminately (¿). A misapprehension of what they understood by jus gentium has led to important errors, which will be noticed hereafter. The law of nature in its modern signification means nothing more than natural justice and equity, or the rules of abstract propriety. This was one of its significations in the Roman law. Jus pluribus modis dicitur, uno modo, cum id, quod semper æquum et bonum est, jus dicitur; ut est jus naturale (j). It is understood by Grotius in the same sense; bonum et æquum, id est rerum naturæ jus (k). So Bynkershoek observes in speaking of Sallust's remarks on the execution of Bomilcar: his observation shews, that the rule of the law of nations which required that Bomilcar should be dismissed with impunity, was not agreeable to those notions of equity and right; which men, (g) Grot. ii. 3, v.; ii. 8, xxvi.; iii. 2, vii; Proleg. 53; Gravin. Orig. 2, xi.; Domat. Tr. des Loix, xi. 39, 44. especially those who have no knowledge of law, frame for themselves; and which demand the punishment of all offenders without distinction of persons (1); and again, the law of nature knows no distinction of persons or territories or states; those distinctions are to be learned from the law of nations (m). The law of nature creates duties of imperfect obligation, which if denied can not lawfully be enforced (n). Imperfect rights is the correlative term used by writers of the law of nature (o). But it is difficult to conceive a right which is without a remedy, and which can not be enforced without wrong, because the person upon whom the imperfect duty rests, is not bound to allow it. The phrase moral claim at once conveys the idea which Puffendorf and Vattel have employed countless pages to confuse. It is obvious that such rules can impose no legal obligation until they are sanctioned by usage or legislative authority, and thus pass into law. Wanting that sanction they bear, when applied to international transactions, the same relation to international law, that the duties of private charity bear to the obligations of municipal law. They are fit to inform the conscience of statesmen, but not to define international rights (p). It is true, that if sovereigns and statesmen were always guided by natural equity, if they were sufficiently enlightened to feel, that plain good intention is of no mean force in the successful conduct of affairs; that a scrupulous regard for the rights of others attracts more influence to a state than all the refinements (1) Bynk. F. L. xviii. Ostendit, quamvis religio juris gentium Bomilcarem dimittendum suaderet, id tamen displicuisse ex æquo et bono: quod homines præsertim juris imperitiores sibi fingunt, et hic fingebant : quodque videbatur flagitare, ut nullo personarum discrimine delictum pœna sequatur. (m) F. L. xxiv. Jus naturæ nec homines distinguit nec dominia nec imperia: jus gentium distinguere docuit. (n) Vatt. Prelim. 17, l. i. 91, ii. 10. (0) Vatt. Prelim. 17. (p) Vatt. iii. 189; Prelim. 21, 28. of fraud, which are sure to be exposed at last; the law of nations, jura inventa metu injusti, would be needless (q). But until the reign of Saturn returns the law of nature, which cannot lawfully be enforced (r), must be supplied by the law of nations and the obligations of treaties. The confusion of the law of nature and the law of nations was foreseen by Grotius as likely to arise from a misconception of the terms of the Roman law. Where the term "law of nations" is met with in the writings of Roman lawyers, it must not at once be construed to mean that law, which is immutable: but care must be taken to distinguish natural precepts from those which are natural only under certain circumstances; and those laws which are common to many states in their several capacities, from those which constitute the bond of human society (s). Again, the Roman lawyers enumerate many modes of acquiring property, which they ascribe to the law of nations. But a careful examination of them will shew: that, with the exception of acquisitions jure belli, they all belong either to the law of nature not in its primary but in its secondary signification; or else to municipal law so far as it was not peculiar to the Romans, but common to them and to all neighbouring states. But this is not the law of nations properly so called; for it regards not the mutual intercourse of nations, but the welfare of each particular state (t). (q) Vatt. ii. 1, 10—ii. 12, 16. (r) Vatt. iii. 189; Prelim. 9, 17, 20. (s) ii. 8, 26. Hæc ideo annotavimus, ne quis reperta juris gentium voce apud Romani juris scriptores, statim id jus intelligat, quod mutari non possit: sed diligenter distinguat naturalia præcepta ab his, quæ jus certo statu sunt naturalia: et jura multis populis seorsim communia ab his, quæ societatis humanæ vinculum continent. (t) Grot. ii. 8, 1. 1. Romani jurisconsulti ubi de acquirendo rerum dominio agunt, complures ejus acquirendi recensent modos, quos juris gentium vocant; sed si quis recte advertat, inveniet eos omnes, excepto belli jure, non pertinere ad jus gentium, de quo agimus; sed aut referendos ad jus naturæ, non quidem merum, sed quod sequitur intro The law of nations is more properly designated international law, which amongst the Romans was termed jus feciale (u). In their divisions of law some of the Roman lawyers recognised three branches: the law of nature; the law of nations; and municipal law; others only two, the law of nations, which natural reason establishes amongst all mankind, and municipal law, which each nation establishes for itself. This division taken in connection with the definition of the law of nations, has led many persons to conclude, that the law of nations is the law of nature, and nothing else (v). Hence arose the opinion prevalent amongst English lawyers, that those who owe no natural or local allegiance to the state in whose territory they are resident, are yet subject to its jurisdiction in respect of offences, that are mala in se (w). This error has been confirmed, as noticed by Zouch, by the definition of the law of nations in the civil law. That which natural reason establishes amongst all mankind, is obeyed equally by all nations, and is called the law of nations, as being the law which all nations observe (x). This definition, ductum jam dominium, et legem omnem civilem antecedat, aut ad ipsam legem civilem non solius populi Romani, sed multarum circa nationum. Hoc autem non est jus illud gentium proprie dictum; neque enim pertinet ad mutuam gentium inter se societatem : sed ad cujusque populi tranquillitatem. The same error is noticed by Zouch. (u) Zouch de leg. del. Jud. p. 6. gentes appellari potest: quod apud vocabatur. Jus gentium magis proprie jus inter (v) Zouch de leg. del. p. 4, 5. Jurisconsulti Romani alii tres juris species, naturale scilicet, gentium et civile constituunt; alii duos tantum jus gentium, quod naturalis ratio inter omnes homines, et jus civile, quod quisque sibi populus constituit. Ex qua divisione et juris gentium definitione multi inducti sunt; ut jus gentium nihil aliud, quam jus naturale, esse opinentur. (u) Bla. Comm. i. 254; Foster's C. L. 188. (x) Instit. i. ii. ff. 1, i. ix. Quod naturalis ratio inter omnes homines constituit, id apud omnes gentes peræquè custoditur vocaturque jus gentium quasi quo jure omnes gentes utuntur. notwithstanding the warnings of Grotius and Zouch, has been mistaken for a definition of international law (y). Such it would become by the alteration of a single word to make it applicable to international transactions; and as such, with the requisite alteration, it has been adopted by Bynkershoek. But international law was not in the contemplation of Gaius, and he never intended so to apply it. But by those who have adopted the error of Puffendorf, it has been so applied, with the omission of its most material element, the uniformity of usage, which in the view of the Roman lawyer constituted the proof of natural reason. These persons hold, that the law of nature unauthenticated by usage, is part of the law of nations. If their doctrine be correct, the slave trade, being contrary to the law of nature, must be a violation of the law of nations; and this, whether it be or be not prohibited by the municipal laws which bind the trader; for the law of nations cannot be varied by municipal regulations. Even the Roman lawyers held slavery to be contrary to the law of nature. By war came captivity and slavery, which is contrary to the law of nature. For by the law of nature all men are born free (z). Again, manumission is derived from the law of nations. For all men being by the law of nature free by birth, slavery, and consequently manumission was unknown to that law. But when slavery came by the law of nations, the benefit of manumission followed by the same law. And when naturally all mankind were known by the designation of men; by the law of nations they became divided into three classes, freemen, slaves, and thirdly, freedmen, that is, those who have ceased to be slaves (a). Slavery is an institution of the law of (y) Bla. Comm. i. 43; Kent Comm. i. 7. (2) Instit. i. ii. 2. Bella etenim orta sunt, et captivitates secutæ, et servitutes, quæ sunt naturali juri contrariæ. Jure enim naturali omnes homines liberi nascebantur. (a) Ff. i. 1, 4. Manumissiones quoque juris gentium sunt, utpote cum jure naturali omnes homines liberi nascebantur, nec esset nota |