of men. He asserts that "there can be no droit (right) where there is no loi (law); and there is no law where there is no superior without law, obligations, properly so called, cannot exist; there is only a moral obligation resulting from natural reason; such is the case between nation and nation. The word gens imitated from the Latin, does not signify in the French language either people or nations." (a)

The same writer has made it the subject of serious reproach to the English language that it applies the term law to that system of rules which governs, or ought to govern, the conduct of nations in their mutual intercourse. His argument is, that law is a rule of conduct, deriving its obligation from sovereign authority, and binding only on those persons who are subject to that authority; that nations, being independent of each other, acknowledge no common sovereign from whom they can receive the law; that all the relative duties between nations result from right and wrong, from convention and usage, to neither of which can the term law be properly applied; that this system of rules had been called by the Roman lawyers the jus gentium, and in all the languages of modern Europe, except the English language, the right of nations, or the laws of war and peace. (b)

That very distinguished legal reformer, Jeremy Bentham, had previously expressed the same doubt how far the rules of conduct which obtain between nations can with strict propriety be called lates. (e) And one of his disciples has justly observed, that “laws, properly so called, are commands proceeding from a determinate rational being, or a determinate body of rational beings, to which is annexed an eventual evil as the sanction. Such is the law of nature, more properly called the law of God, or the divine law; and such are political human laws, prescribed by political superiors to persons in a state of subjection to their authority. But laws imposed by general opinion are styled laws by an analogical extension of the term. Such are the laws of honor imposed by opinions current in the fashionable world, and enforced by appropriate sanction. Such, also, are the laws which (a) Rayneval, Institutions du Droit de la Nature et des Gens, Note 10 du 1r liv. p. vui

(Droit des gens, Fr. Diritto delle genti, Ital. Derecho de gentes, Span. Direito das Gentes, Portug. Volkerrecht, Germ. Volkenregt, Dutch. Folkeret, Dan. Folkratt, Swed

(c) Bentham, Morals and Legislation, ii. 256. Ed. 1823.

regulate the conduct of independent political societies in their mutual relations, and which are called the law of nations, or international law. This law obtaining between nations is not positive law; for every positive law is prescribed by a given superior or sovereign to a person or persons in a state of subjection to its author. The rule concerning the conduct of sovereign States, considered as related to each other, is termed law by its analogy to positive law, being imposed upon nations or sovereigns, not by the positive command of a superior authority, but by opinions generally current among nations. The duties which it imposes are enforced by moral sanctions: by fear on the part of nations, or by fear on the part of sovereigns, of provoking general hostility, and incurring its probable evils, in case they should violate maxims generally received and respected." (d)

This law has commonly been called the jus gentium in the Latin, droit des gens in the French, and law of nations in the English language. It was more accurately termed the jus inter gentes, the law between or among nations, for the first time, by Dr. Zouch, an English civilian and writer on the science, distinguished in the celebrated controversy between the civil and common lawyers during the reign of Charles II., as to the extent of the Admiralty jurisdiction. He introduced this term as more appropriate to express the real scope and object of this law. (e) An equivalent term in the French language was subsequently proposed by Chancellor D'Aguesseau, as better adapted to express the idea properly annexed to that system of jurisprudence commonly called le droit des gens, but which, according to him, ought properly to be termed le droit entre les gens. (f) The term international law has been since proposed by Mr. Bentham as well adapted to express in our language, "in a more significant manner that branch of jurisprudence, which commonly goes under the name of law of nations, a denomination so uncharacteristic, that were it not for the force of custom, it would rather seem to refer to internal or municipal jurisprudence." (g) The terms international law and droit international have now taken root in the English and French languages, and are constantly used in all

(d) Austin, Province of Jurisprudence determined, 147, 207.

(e) Zouch, Juris et Judicii Fecialis, sive Juris inter Gentes. Lond. 1650.

(f) Euvres de D'Aguesseau, tom. ii. p. 337. Ed. 1773.

(g) Bentham, Morals and Legislation, ii. 256.

discussions connected with the science, and we cannot agree with Heffter in proscribing them.7

Opinion of

§ 13. According to Savigny," there may exist between different nations the same community of ideas which con- Savigny. tributes to form the positive unwritten law (das positive Recht) of a particular nation. This community of ideas, founded upon a common origin and religious faith, constitutes international law as we see it existing among the Christian States of Europe, a law which was not unknown to the people of antiquity, and which we find among the Romans under the name of jus feciale. International law may therefore be considered as a positive law, but as an imperfect positive law, (eine unvollendete Rechtsbildung,) both on account of the indeterminateness of its precepts, and because it lacks that solid basis on which rests the positive law of every particular nation, the political power of the State and a judicial authority competent to enforce the law. The progress of civilization, founded on Christianity, has gradually conducted us to observe a law anal

[Jus and Lex. This seems to be merely a question of nomenclature. The object is to find the most suitable term by which to designate those rules of conduct which govern nations in their intercourse with each other. There seems to be no reason in the nature of things why the term jus gentium, and the corresponding words in modern languages, droit des gens (or, des nations), and law of nations, should not be satisfactory. The objection is only that the Romans did in fact use the term jus gentium in a wider sense, so as to include more than we seek to express. But that objection has never attached itself to the corresponding words in the languages of modern Europe. Still, to obviate the objection that such wider and more undefined sense might be transferred from one to the other, the new terms, International law, Jus inter gentes, Droit Internatomi, Derecho Internacional, &c., have been invented, and apparently for no other reaB. As technical terms, they will probably be continued; but, in ordinary discourse, the older terms, Law of Nations, Droit des gens, &c., are more commonly used, and with a signification not misunderstood, or liable to doubt. The infirmity of the EngLsh language in having but one word, “law," by which to express the two ideas the Romans expressed by jus and ler, and the French express by droit and loi, the Germans by Recht and Gesetz, and for which all other modern nations seem to have two words, appears to be beyond remedy. None has even been proposed. But, in practice the word "law" is understood by its context, as is the case with a great number of words and no one, speaking of a law of nations, or an international law, would understand the word in the sense of ler or loi, as distinguished from jus and droit; for all who use the English language are obliged to make a corresponding distinction, wrundum sub,ectum materiam, wherever the word "law" is employed, in matters human or divine. See Manning on Intern. Law, 2; Heron's Hist. of Jurisprudence, 14; Felix, Droit Intern. Privé, ch. i. § 1, note 1; Hautefeuille, Droits des Nations Neutres, i. 3. The Spanish writers, Riquelme and Bello use the term Derecho InterKent's Comm. i. 2, note a; Westlake's Pr. Intern. Law, 1; Phillemore's Intern. Law, i. 2; Woolsey's Introd., § 9.]-D.

ogous to this in our intercourse with all the nations of the globe, whatever may be their religious faith, and without reciprocity on their part." (a)

It may be remarked, in confirmation of this view, that the more recent intercourse between the Christian nations in Europe and America and the Mohammedan and Pagan nations of Asia and Africa indicates a disposition, on the part of the latter, to renounce their peculiar international usages and adopt those of Christendom. The rights of legation have been recognized by, and reciprocally extended to, Turkey, Persia, Egypt, and the States of Barbary. The independence and integrity of the Ottoman Empire have been long regarded as forming essential elements in the European balance of power, and, as such, have recently become the objects of conventional stipulations between the Christian States of Europe and that Empire, which may be considered as bringing it within the pale of the public law of the former. (b)

The same remark may be applied to the recent diplomatic transactions between the Chinese Empire and the Christian nations of Europe and America, in which the former has been compelled to abandon its inveterate anti-commercial and anti-social principles, and to acknowledge the independence and equality of other nations in the mutual intercourse of war and peace.8

(a) Savigny, System des heutigen römischen Rechts, 1 B'd, 1 Buch, Kap. ii. § 11. (b) Wheaton's Hist. Law of Nations, 583.

[By the Treaty of Paris, of March 30, 1856, the great powers invited the Sultan to participate in the advantages of the public law and system of Europe. There are treaties of the Sultan with Austria, Venice, and Poland, in 1699; with Austria in 1718 (the Peace of Passarowitz); and with Russia in 1774, 1792, 1812, 1826, 1829, and 1833. The United States and the maritime nations of Europe have treaties with China and Japan, and ministers resident at Peking and Yedo. The United States have treaties with China, of 1844 and 1858; and with Japan, of 1854 and 1858; with the Ottoman Empire, of 1830 and 1862; with Siam, of 1833 and 1858; with Algiers, of 1795, 1815, and 1816; Tripoli, of 1796 and 1805; Tunis, of 1799 and 1824; Persia, of 1856; the Sultan of Muscat, of 1833; Morocco, of 1836; and Borneo, of 1850.

The most remarkable proof of the advance of Western civilization in the East, is the adoption of this work of Mr. Wheaton, by the Chinese Government, as a text-book for its officials, in International Law, and its translation into that language, in 1864, under imperial auspices. The translation was made by the Rev. W. A. P. Martin, D.D., an American missionary, assisted by a commission of Chinese scholars appointed by Prince Kung, Minister of Foreign Affairs, at the suggestion of Mr. Burlingame, the United States Minister, to whom the translation is dedicated. Already this work has been quoted and relied upon by the Chinese Government, in its diplomatic correspondence with ministers of Western Powers resident at Peking.] — D.

of interna

§ 14. International law, as understood among civilized Definition nations, may be defined as consisting of those rules of tional law. conduct which reason deduces, as consonant to justice, from the nature of the society existing among independent nations; with such definitions and modifications as may be established by general consent. (a) 9

§15. The various sources of international law in these different branches are the following:

Sources of

international law.

1. Text-writers of authority, showing what is the approved usage of nations, or the general opinion respecting their mutual conduct, with the definitions and modifications introduced by general consent.

Without wishing to exaggerate the importance of these writers, or to substitute, in any case, their authority for the principles of reason, it may be affirmed that they are generally impartial in their judgment. They are witnesses of the sentiments and usages of civilized nations, and the weight of their testimony

(a) Madison, Examination of the British Doctrine which subjects to Capture a Neutral Trade not open in Time of Peace, London ed. 1806.

[ Halleck defines the Law of Nations to be "the rules of conduct regulating the Intercourse of States." Halleck's Intern. Law, 42.

Woolsey defines it as "the aggregate of the rules which Christian States acknowledge as obligatory in their relations to each other and to each other's subjects." Wxdsey's Introd. § 5.

Professor Cairns says: "International law is the formal expression of the public on of the civilized world respecting the rules of conduct which ought to govern the relations of independent nations, and is, consequently, derived from the source from which all public opinion flows, the moral and intellectual convictions of mankind."

Kent describes it as "that code of public instruction which defines the rights and prescribes the duties of nations in their intercourse with each other," and as existing according to the general usages of nations." Kent's Comm. i. 1.

-Seif protection and intercourse are the two sources of international law. They make it necessary; and the conception in man of justice, of rights and obligations, must Sow, because he has a moral nature." Woolsey's Introd. § 6, note.

Austin points out the fault of the older Continental writers in confounding rules of international morality, as, in their opinion, they should be, with the actual international law in operation among nations. Province of Jurisprudence, 235, note. Hautefeuille divides international law into two parts, which he calls primitif and secondaire,—the first containing, as he says, the principles, the absolute basis, of the law; and the second, the measures or provisions for calling up these principles and securing their execution. Droits des Nations Neutres i. 6–13. In the application of this theory, it will be found that the distinguished writer usually treats the primitive law, or the well or fountain of first principles, as of actual authority, where no express agreement departs from it; and so much of the practice of nations as consists in judicial decisions adopted, enforced, and acquiesced in, he considers as of less authority than the primitive law as it les in the breast of the text-writers.] — D.