1. An inquiry into the origin and nature of the Laws which govern international relations (leges.)

2. The Subjects of these laws. The original and immediate subjects are States considered in their corporate character.

3. The Objects of these laws. These objects are Things, Rights, and the Obligations which correspond to them (Res, Jura, Obligationes.)

4. Certain Subjects of these laws which, though only to be accounted as such mediately and derivatively, yet, for the sake of convenience, require a separate consideration.

These Subjects of International Law are the following individuals who are said to represent a state :·

1. Sovereigns.

2. Ambassadors.

Also another class of public officers who are not clothed, accurately speaking, with a representative character, but who are entitled to a quasi diplomatic position, namely—

3. Consuls.

4. Lastly, the International Status of Foreign Spiritual Powers, especially of the Pope, requires a distinct consideration.

XIV. Public International Rights, like the Private Rights of an Individual, are capable of being protected and enforced by Legal Means. *These Legal Means are of two kinds, aptly expressed by jurists as being (1) viâ amicabili, and (2) viâ facti.

1. Viâ amicabili.

2. Viâ facti.

1. Negotiation.

2. Arbitration.

1. Reprisals.

2. Embargo.
3. War.

[*11]

When war has actually begun, we enter upon the jus belli, which is to be considered with reference to

1. The Rights of Belligerents;

2. The Rights of Neutrals

"Sequitur enim de jure belli: in quo et suscipiendo, et gerendo, et deponendo, jus, ut plurimum valet, et fides. (a) For the wars (as Lord Bacon says) are no massacres and confusions, but they are the highest trials of right."(6)

Grotius points out, with his usual sound and true philosophy, the proper place, object, and functions of war in the system of International Law:(c) "Tantum vero abest ut admittendum sit, quod quidam fingunt, in bello omnia jura cessare, ut nec suscipi bellum debeat nisi ad juris consecutionem, nec susceptum geri nisi intra juris et fidei modum. Benè Demosthenes bellum esse in eos dixit, qui judiciis coerceri nequeunt; judicia enim vigent adversus eos qui invalidiores se sentiunt: in eos qui

(a) Cicero de Rep. lib. ii. c. 14; and he adds, "horumque ut publici interpretes essent lege sanximus."

(b) Bacon's Works, vol. v. p. 384 (ed. Basil Montagu.)

(c) Grotii Proleg. 25, De Jure Belli et Pacis; though he illogicially misplaces the treatment of it in his great work, beginning, as indeed he admits, with the end of his subject.

pares se faciunt aut putant, bella sumuntur; sed nimirum ut recta sint, non minori religione exercenda quam judicia exerceri solent ;" and again, “bellum pacis causâ suscipitur."(d)

[ *12 ]

XV. When by use of the Legal Means of War the *Right has been obtained or secured, or the Inquiry redressed—post juris consecutionem—the normal state of peace is re-established.

A consideration of the negotiations which precede, and the consequences which follow, the Ratification of Peace will conclude that portion of this work which relates to Public International Law.

XVI. We have hitherto spoken of Public International Law (jus publicum inter gentes-jus pacis,) which governs the mutual relations of States with respect to their Public Rights and Duties; but, as States are composed of Individuals, and as individuals are impelled by nature and allowed by usage to visit and to dwell in states in which they were not born, and to which they do not owe a natural allegiance, and as they must and do enter inter transactions and contract obligations, civil, moral, and religious, with the inhabitants of other states, and as States must take some cognizance of these transactions and obligations, and as the municipal law of the country cannot, in many instances at least, be applied with justice to the relations subsisting between the native and the foreigner-from these causes a system of Private International Law, a "jus gentium privatum," has sprung up, which has taken deep root among Christian, though it more or less exists among all, nations.

The distinction, however, between the two branches of International Jurisprudence is exremely important. It is this:

The obligationes juris privati inter gentes are not-as the obligationes juris publici inter gentes are—the result of legal necessity, but of social convenience, and they are called by the name of Comity-comitas genitum.

It is within the absolute competence of a State to refuse permission to foreigners to enter into transactions with its subjects, or to allow them to do so, being forewarned that the *municipal law of the land [*13] will be applied to them ; (e) therefore a breach of comity cannot, strictly speaking, furnish casus belli, or justify a recourse to war, any more than a discourtesy or breach of a natural duty, simply as such, can furnish ground for the private action of one individual against another.(ƒ)

For a want of Comity towards the individual subjects of a foreign State, reciprocity of treatment by the State whose subject has been injured, is, after remonstrance has been exhausted, the only legitimate remedy; whereas the breach of a rule of Public International Law constitutes a casus belli, and justifies in the last resort a recourse to war.

(d) Ib. lib. i. c. i. s. 1.

"Le mal que nous faisons à l'agresseur n'est point notre but: nous agissons en vue de notre salut, nous usons de notre droit; et l'agresseur est seul coupable du mal qu'il s'attire."-Vattel, liv. ii. c. ii. s. 18.

Taylor's Civil Law, p. 131.

(e) Neyron, Principes du Droit des Gens Européens, 1. clxxi. c. vi. s. 177. Barbeyrac, Ad Grotium, 1. ii. c. ii. s. 13.

(f) Vattel, liv. ii. c. i. s. 10.

It is proposed to treat the subject of Comity or Private International Law next in order to the subject of Public International Law.

*CHAPTER III.

[*14]

SOURCES OF INTERNATIONAL LAW.

XVII. It is proposed in this chapter to trace the source and ascertain the character of those laws which govern the mutual relations of independent States in their intercourse with each other.

XVIII. International Law has been said, by one profoundly conversant with this branch of jurisprudence, to be made up of a good deal of complex reasoning, and though derived from very simple principles, altogether to comprise a very artificial system.(a)

XIX. What are the depositories of this reasoning and these principles? What are the authorities to which reference must be made for the adjustment of disputes arising upon their construction, or their application to particular instances? What are in fact the fountains of International Jurisprudence-"dijudicationum fontes?"-to borrow the just expression of Grotius. These are questions which meet us on the threshold of this science, and which require as precise and definite an answer as the peculiar nature of the subject will permit. (b)

XX. Grotius enumerates. these sources as being "ipsa natura, leges divinæ, mores, et pacta." (c)

In 1753, the British Government made an answer to a memorial of the Prussian government(d) which was termed *by Montesquieu [*15] réponse sans replique,(e) and which has been generally recognised as one of the ablest expositions of international law ever embodied in a State paper. In this memorable document, "The Law of Nations" is said to be “founded upon justice, equity, convenience, and the reason of the thing, and confirmed by long usage.'

XXI. These two statements may be said to embrace the substance of all that can be said on this subject. An attempt must now be made to examine in detail, though not precisely in the same order, each of the individual sources set forth in the foregoing citations.

XXII. Moral persons are governed partly by Divine law (leges divinæ,) which includes natural law-partly, by positive instituted human law, which includes written and unwritten law or custom (jus scriptum, non scriptum consuetudo.)

(a) Lord Stowell: the Hurtige Hane, 3 Robinson, Adm. R. 326.

(6) Arist. Eth. lib. i. c. 2 : " Πεπαιδευμένου γάρ ἐστιν, ἐπὶ τοσοῦτον τἀκριβὲς ἐπιζητεῖν καθ ̓ ἕκαστον γένος ἐφ ὅσον ἡ τοῦ πράγματος φύσις ἐπιδέχεται, παραπλήσιον γὰρ φαίνεται, μαθα ηματικού τε πιθανολογοῦντος ἀποδέχεσθαι, καὶ ῥητορικὸν ἀποδείξεις ἀπαιτεῖν.”

:

(c) Prolegom. "By the Law of Nature and Nations and by the Law Divine, which is the perfection of the other two."-Lord Bacon, Of an Holy War. (d) Cabinet of Scarce and Celebrated Tracts, 1 vol. (Edinburgh).

(e) Lettres Persannes, liv. xlv.

States, it has been said, are reciprocally recognized as moral persons. States are therefore governed, in their mutual relations, partly by Divine, and partly by positive law. Divine Law is either (1) that which is written by the finger of God on the heart of man, when it is called Natural Law; or (2) that which has been miraculously made known to him, when it is called revealed, or Christian law.(ƒ)

XXIII. The Primary Source, then, of International Jurisprudence is Divine Law. Of the two branches of Divine Law which have been mentioned, natural law, called by jurists jus primarium, is to be first considered. "In jure gentium," (g) Grotius says, "jus naturæ includitur;" and, again, "jure primo gentium quod et naturale dicitur."

All civilized heathen nations have recognized this law as binding upon themselves in their internal relations. They called it the unwritten, the innate law the law of which *mortals had a Divine intuition(h) [*16] the law which was begotten and had its footsteps in heaven, which could not be altered by human will,(¿) which secured the sanctity of all obligations--the law which natural reason has rendered binding upon all mankind.()

XXIV. It has been often said that the civilized heathen nations of old, that the Greeks and Romans recognized no such law in their external relations; that is, in their intercourse with themselves or with other nations. But this conclusion is founded on slender and insufficient premises, chiefly upon the absence of distinct treatises on the subject, on the want of a distinct phrase expressing the modern term international law-on the etymological meaning of words--on the use of "jus gentium" in the repositories of Roman law, as an expression identical with jus naturæ——and on the practical contempt for the law, exhibited in the unbounded ambition and unjustifiable conquests of ancient Rome.

XXV. Nevertheless, we know that Aristotle (?) wrote a treatise on the justifying causes of war; and we read, in one of his works, a severe censure upon those nations who would confine the cultivation of justice within the limits of their own territories, and neglect the exercise of it in their intercourse with other nations.(m) Thucydides(n) prefers the same charge against the Lacedæmonians, which is repeated *by [*17] Plutarch ;(0) and we find Plato demanding,(p) with indignation,

(f) Arist. Eth. lib. v. c. 7. St. Paul's Ep. to the Romans, ii. 14, 15. (g) Mare Liberum, lib. v. ; Merlin Rep. de Jurispr. tom. v. p. 291.

(h) Arist. Rhet. b. i. c. 13: “Ἴδιον μὲν τὸν ἑκάστοις ὡρισμένον πρὸς αὑτούς· καὶ τοῦτον τὸν μὲν ἄγραφον, τὸν δὲ γεγραμμένον. Κοινὸν δὲ τὸν κατὰ φύσιν· ἔστι γὰρ, δ μαντεύονται τι πάντες, φύσει κοινὸν δίκαιον καὶ ἄδικον, καν μηδεμία κοινωνία πρὸς ἀλλήλους ᾖ, μηδὲ συνθήκη. (i) Soph. Antig. v. 450-7; “'Uiñodes vóμoi.”—ŒEd. Tyr. 836.

(k) Cic. Pro Milone, 3; De Rep. 1. iii. c. 22.

1) Δικαιώματα τῶν πολέμων.

(m) Αυτοὶ μὲν γὰρ παρ αυτοῖς τὸ δικάιως ἄρκειν ζητοῦσι πρὸς δὲ τοὺς ἄλλους οὐδεν μέλει T☎v dikáιwv.”—Polit. lib. vii. c. 2. And when he is discussing the different ends of different kinds of oratory, and observing that the speaker in the public assembly dwells on the inexpediency and not the immorality of a particular course of action: ι ὡς δ ̓ οὐκ ἄδικον τοὺς ἀστυγείτονας καταδουλοῦσθαι, καὶ τοὺς μηδὲν ἀδικοῦντας, πολλάκις ουδὲν Opovríšovou."-Rhet. tom. i. c. 3.

(n) Thucyd. lib. v.

(0) Plutarch: Vitâ Agesilai.

(γ) “ Πόλιν φαίης ἂν ἄδικον εἶναι καὶ ἄλλας πολεις ἐπιχειρεῖν δουλοῦσθαι ἀδίκως καὶ κατα

whether it was reasonable to suppose that any society could flourish which did not respect the rights of other societies. We find Euripides speaking of the natural equality of rights as binding city to city, and ally to ally.(g) We find Themistocles claiming the right, “communi jure gentium," of placing Athens in a state of defence.() We find that the rights of embassy were respected-that treaties were ratified by solemn sacrifices,(s) and placed under the especial care of the deities who avenged violated faith. We read of the memorable Amphictyonic league, which constituted the tribunal of public international law for Greece. These and other historical facts demonstrate that the application of the principles of natural justice to international relations, however imperfectly executed, and though never, perhaps, reduced to a system, was not unknown to Greece. (t)

XXVIII. We are led with yet more certainty to this conclusion with respect to Rome, by the consideration of two remarkable institutions which existed there:-1. The Collegium Fecialium, with the Jus Feciale, (u) which could not be better translated than by the words [ *18 ] "Public International Law." 2. The institution of the Recuperatores, with the doctrine of the Recuperatio, the precursor of that system which is now called "Private International Law." Traces of the same fact are abundantly scattered over the pages of Latin authors, legal, historical, and philosophical. The phrase "jus gentium," in classical writers, and in the Justinian compilations of law, is indeed generally (though not without exceptions) used as synonymous with natural law;(x) for there are passages in these compilations, as well as in the pages of Sallust and Livy, in which the phrase, strictly speaking, denotes international law. The fact, moreover, that the expression "jus gentium" was used as synonymous with what is now called "jus naturale,' is by no means inconsistent with the position, that the principles of natural law were, theoretically at least, recognised by Rome in her external as well as her internal relations.(y)

δεδουλῶσθαι πολλας δε καὶ ὑφ ̓ ἑαυτῆ ἔχειν δουλωσαμένην ; πῶς, γαρ ουκ; έφη

'αλλὰ δὴ καὶ τόδε μοι χάρισαι καὶ λέγε· δοκεῖς ἂν ἢ πόλιν, ἢ στρατόπεδον, ἢ ληστὰς, ἢ κλέπτας,

ἢ ἄλλο τι ἔθνος, ὅσα κοινῇ ἐπί τι ἔρχεται ἀδίκως, πρᾶξαι ἂν τι δύνασθαι ἐι ἀδικοῖεν ἀλλήλους;

τὶ δ' ει μὴ αδικοῖεν ; οὐ μαλλον Πάνυ γε," κ. τ. λ. De Rep. lib. i. pp. 77, Gothæ et Erfordiæ.

แ “ Κεῖνο κάλλιον, τέκνον,

ισότητα τιμᾷν, ἢ φίλους ἀεὶ φίλοις

πόλεις τε πόλεσι συμμάχους τε συμμάχοις
ξυνδεῖ, τὸ γαρ ἴσον νόμιμον ἀνθρώποις ἔφυ.”

Cornelius Nepos, Vitâ Themistoc.

épv.”

Φοινίσσαι, 535.
(8) Livy, 1. xxiv.

(t) See Appendix for a fuller dissertation upon this subject.

(u) Zouch's Treatise on International Law is entitled, "De Jure Feciali, sive de

Jure inter Gentes."

(x) Puchta, Instit. 362. See Appendix. (y) Taylor, p. 128. "The law was natural law before: the existence of this situation only gives it use and application. Suppose the observance of faith to be a rule of nature: when, to speak in the language of the Schools, it is Jus Naturæ ab origine et causâ proximâ, it is Jus Gentium a subjecto." And again: "Contracts were introduced by the law of nations; no new law is formed, but an eternal and necessary law has now a scene to exert its operations in."

JULY, 1854.-5