PART I. OF THE LAW OF NATIONS.

LECTURE I.

OF THE FOUNDATION AND HISTORY OF THE LAW OF NATIONS.

WHEN the United States ceased to be a part of the British empire, and assumed the character of an independent nation, they became subject to that system of rules which reason, morality, and custom had established among the civilized nations of Europe, as their public law. During the war of the American revolution, Congress claimed cognizance of all matters arising upon the law of nations, and they professed obedience to that law, "according to the general usages of Europe." (a) By this law we are to understand that code of public instruction which defines the rights and prescribes the duties of nations, in their intercourse with each other.¹ The faithful observance of this law is essential to national

(a) Ordinance of the 4th December, 1781, relative to maritime captures. Journals of Congress, vii. 185. The English judges have frequently declared that the law of nations was part of the common law of England. Triquet v. Bath, 3 Burr. 1478; Heathfield v. Chilton, 4 ib. 2015; and it is well settled that the common law of England, so far as it may be consistent with the constitutions of this country, and remains unaltered by statute, is an essential part of American jurisprudence. Vide infra, 342, 472, 473.

¹ For other definitions, see Wheat. pt. 1, c. 1, Dana's note, 9; Aust. Jur. lect. 6, 3d ed. 231.

International Law is probably the better title. Wheat. Dana's note, 7: Woolsey, Introd. § 9; Abdy's Kent, 4; Twiss, Law of Nat. pt. 1, § 85; cf. Aust. Jur. lect. 5, 3d ed. 177; post, 51, n. (b). The jus gentium of the Roman lawyers is now understood to have meant something very different from the modern international law. It

was "a collection of rules and principles, determined by observation to be common to the institutions which prevailed among the various Italian tribes." "The jus naturale, or Law of Nature, is simply the jus gentium, ... seen in the light of a peculiar theory.... The confusion between Jus Gentium, or law common to all nations, and international law is entirely modern." Maine, Anc. Law, c. 3, Am. ed. pp. 48, 50. See Aust. Jur. lect. 31; Gaii. Inst. 1, § 1.

character, and to the happiness of mankind. According to the observation of Montesquieu, (b) it is founded on the principle that different nations ought to do each other as much good in peace, and as {2} little harm in war, as possible, without injury to their true interests. But as the precepts of this code are not defined in every case with perfect precision, and as nations have no common civil tribunal to resort to for the interpretation and execution of this law, it is often very difficult to ascertain, to the satisfaction of the parties concerned, its precise injunctions and extent; and a still greater difficulty is the want of adequate pacific means to secure obedience to its dictates.

There has been a difference of opinion among writers, concerning the foundation of the law of nations. It has been considered by some as a mere system of positive institutions, founded upon consent and usage; while others have insisted that it was essentially the same as the law of nature, applied to the conduct of nations, in the character of moral persons, susceptible of obligations and laws. We are not to adopt either of these theories as exclusively true. The most useful and practical part of the law of nations is, no doubt, instituted or positive law, founded on usage, consent, and agreement. But it would be improper to separate this law entirely from natural jurisprudence, and not to consider it as deriving much of its force and dignity from the same principles of right reason, the same views of the nature and constitution of man, and the same sanction of Divine revela-

(b) L'Esprit des Loix, b. 1, c. 3.

These chapters of Austin and Maine show the derivation of the theory in question from doctrines of the Stoic philosophy, which were held by many of the Roman jurists. See also Heinecc. Elem. Juris. Civ. sec. ord. Pand. 1. 1. § 12. The origin of the modern law of nations is well explained in Mr. Maine's fourth chapter. [See Hall, Int. Law, Appen. I.]

Austin was further of the opinion, which he sustained by arguments of great force, that international law, so called, is not properly law at all, but a branch of morality, as it does not consist of commands propounded by a political superior to a political inferior and enforced by

penalties to be incurred in case of disobedience. Aust. Jur. lect. 5 and 6, supra; 6 Am. Law Rev. 340. But other writers have thought this too narrow a view. Manning's Law of N. 4; Twiss, Law of N. pt. 1, §§ 96, 97; 5 Am. Law Rev. 4, 5; 6 Am. Law Rev. 723; 1 Law Mag. &. Rev. N. S. 189; April, 1872. Of course, when the principles of international law are adopted by statute or judicial decision, they become part of the municipal law of that jurisdiction, and are binding as such. The question is, whether the sovereign power can properly be said to be subject to law.

tion, as those from which the science of morality is deduced. There is a natural and a positive law of nations. By the former, every state, in its relations with other states, is bound to conduct itself with justice, good faith, and benevolence; and this application of the law of nature has been called by Vattel the necessary law of nations, because nations are bound by the law of nature to observe it; and it is termed by others the internal law of nations, because it is obligatory upon them in point of conscience. (c)

We ought not, therefore, to separate the science of public law from that of ethics, nor encourage the dangerous {3} suggestion that governments are not so strictly bound by the obligations of truth, justice, and humanity, in relation to other powers, as they are in the management of their own local concerns. States, or bodies politic, are to be considered as moral persons, having a public will, capable and free to do right and wrong, inasmuch as they are collections of individuals, each of whom carries with him into the service of the community the same binding law of morality and religion which ought to control his conduct in private life, (a) The law of nations is a complex system, composed of various ingredients. It consists of general principles of right and justice, equally suitable to the government of individuals in a state of natural equality, and to the relations and conduct of nations; of a collection of usages, customs, and opinions, the growth of civilization and commerce; and of a code of conventional or positive law. (b)

(c) Vattel, Prelim, sec. 7. Omni autem in re consensio omnium gentium lex naturæ putanda est. — Cic. Tusc. Disp. 1, 13. Heineccius, in his Elementa Juris Naturæ et Gentium, b. 1, c, 1 and 3 (and which is very excellent as to the first branch of the subject), and all the other great masters of ethical and national jurisprudence, place the foundation of the law of nature in the will of God, discoverable by right reason, and aided by Divine revelation; and its principles, when applicable, apply with equal obligation to individuals and to nations. A recent French writer (M. Victor Foucher) divides the law of nations into two branches. (1.) Public international law, which regulates the political relation of nation to nation; and (2.) private international law, which, though based upon the first, regulates the reciprocal and personal relations of the inhabitants of different states.

(a) Dr. Francis Lieber, in his Manual of Political Ethics, 2 vols., Boston, 1838, has shown with great force, and by the most striking and apposite illustrations, the original connection between right and morality, and the reason and necessity of the application of the principles of ethics to the science of politics and the administration of government. The work is excellent in its doctrines, and it is enriched with various and profound erudition.

(b) 2 Mason, 448, Story J.

In the absence of these latter regulations, the intercourse and conduct of nations are to be governed by principles fairly to be deduced from the rights and duties of nations, and the nature of moral obligation; and we have the authority of the lawyers of antiquity, and of some of the first masters in the modern school of public law, for placing the moral obligation of nations and of individuals on similar grounds, and for considering individual and national morality as parts of one and the same science, (c)

The law of nations, so far as it is founded on the principles of natural law, is equally binding in every age, and upon all mankind. But the Christian nations of Europe, and their descendants on this side of the Atlantic, by the vast superiority of their attainments in arts, and science, and commerce, as well as in policy and government, and, above all, by the brighter light, the more certain truths, and the more definite sanction which Christianity has communicated to the ethical jurisprudence of the ancients, have established a law of nations peculiar to themselves. They {4} form together a community of nations united by religion, manners, morals, humanity, and science, and united also by the mutual advantages of commercial intercourse, by the habit of forming alliances and treaties with each other, of interchanging ambassadors, and of studying and recognizing the same writers and systems of public law. (a)

After devoting the present lecture to a cursory view of the

(c) A writer in the Edinburgh Review for April, 1843, considers the elements of which the law of nations is composed, as consisting, (1) of international morality, being the rules commanded by the Deity, and which may be called the divine or natural law of nations; (2) of international law, being rules of conduct sanctioned by the public opinion and usages of civilized nations, and which may be called the human, the actual, the received, or the positive law of nations. The one treats the laws of nations as a science, and the other as a system of positive rules.

(a) The law of nature, by the obligations of which individuals and states are bound, is identical with the will of God, and that will is ascertained, says Mr. Manning, either by consulting Divine revelation, where that is declaratory, or by the application of human reason, where revelation is silent. Christianity, in the words of Butler, "is an authoritative publication of natural religion," and it is from the sanction which revelation gives to natural law that we must expect the gradual increase of the respect paid to justice between nations. Christianity reveals to us a general system of morality, but the application to the details of practice is left to be discovered by human reason. See Commentaries on the Law of Nations, by Wm. Oke Manning, Esq., London, 1839, b. 2, c. 1. This work is the first English treatise which I have seen, containing a regular and didactic discussion of the science, and is a work of great excellence; and I beg leave to recommend it strongly to the attention of the American student.

history of the law of nations, I shall enter upon the examination of the European and American code of international law, and endeavor to collect, with accuracy, its leading principles, and to discuss its practical details.

The law of nations, as understood by the European world, and by us, is the offspring of modern times. The most refined states among the ancients seem to have had no conception of the moral obligations of justice and humanity between nations, and there was no such thing in existence as the science of international law. They regarded strangers and enemies as nearly synonymous, and considered foreign persons and property as lawful prize. Their laws of war and peace were barbarous and deplorable. So little were mankind accustomed to regard the rights of persons or property, or to perceive the value and beauty of public order, that in the most enlightened ages of the Grecian republics piracy was regarded as an honorable employment. There were powerful Grecian states that avowed the practice of piracy; and the fleets of Athens, the best disciplined and most respectable naval force in all antiquity, were exceedingly addicted to piratical excursions. It was the received opinion that Greeks, even as between their own cities and states, were bound to no duties, nor by any moral law, without compact; and that prisoners taken in war had no rights, and might lawfully be put to death, or sold into perpetual slavery, with their wives and children. (b)

{5} There were, however, many feeble efforts, and some successful examples, to be met with in Grecian history, in favor of national justice. The object of the Amphictyonic council was to institute a law of nations among the Greeks, and settle contests between Grecian states by a pacific adjustment.¹ It was also a law of nations among them, and one which was very religiously observed, to allow to the vanquished the privilege of

(b) Thucydides, b. 1, sec. 5; Mitford's History of Greece, 8vo edit. ii. 352, — vi. 107, 135, et passim. Isocrates, Orat. Panathe., Opera, edit. Wolfius, 635. Barbari natura essent hostes. Ward's Inquiry into the History of the Law of Nations, i. 177-183; Goguet's Origine des Loix, &c., pt. 2, b. 5; Grotius, b. 3, c. 7; Justin's Hist. 1, 43, c. 3; Latrocinium maris gloriosum habebatur. Potter's Antiquities of Greece, b. 3, c. 10 and 12, b. 4, c. 21.

¹ It was a religious rather than a political assembly. The text is said to be inaccurate in Abdy's edition. See also

Fustel de Coulanges, La Cité Antique,

250, n. 2.

burying their own dead, and to grant the requisite truce for that purpose. Some of these states had public ministers resident at the courts of others, (a) and there were some distinguished instances of great humanity shown to prisoners of war. During a cessation of arms in the course of the Peloponnesian war, Athens and Sparta agreed to an exchange or mutual surrender of prisoners, (b) The sound judgment and profound reflections of Aristotle naturally raised his sense of right above the atrocious maxims and practices of his age, and he perceived the injustice of that doctrine of Grecian policy, that, by the laws of war, the vanquished became the absolute property of the victor. "Wise men," he observed, "entertained different opinions upon that subject. Some considered superiority as a proof of virtue, because it is its natural effect, and they asserted it to be just that the victors should be masters of the vanquished; whilst others denied the force of the argument, and maintained that nothing could be truly just which was inconsistent with humanity." (c) He then proceeded to weaken by argument the false foundations on which the law of slavery, by means of capture in war, was established; and though he does not write on the subject very distinctly or forcibly, it seems to be quite apparent that his convictions were against the law.

The Romans exhibited much stronger proofs than the Greeks of the influence of regular law, and there was a marked difference between those nations in their intercourse {6} with foreign powers. It was a principle of the Roman government, that none but a sworn soldier could lawfully fight the enemy; and in many instances the Romans showed that they excelled the Greeks, by the observance of better principles in their relations with other nations. The institution of a college of heralds or priests, charged with the fecial law relating to declarations of war and treaties of peace, was evidence of a people considerably advanced in the cultivation of the law of nations as a science; (a)¹ and yet with what little attention they were

(a) Mitford's History, v. 378, 379.

(c) Gillies' Aristotle's Politics, ii. 35, 36.

(b) Thucyd. 1, 5, c. 18.

(a) Livy, b. 1, c. 32; ib. b. 9, c. 5; ib. 36, c. 3; Cicero de Off. 1, 11. The colle-

¹ Mr. Abdy, in his edition of this volume, thinks that the function of the fetiales was only ministerial, and consisted in

seeing that the proper forms were observed in declaring war. p. 17.

accustomed to listen to the voice of justice and humanity, appears but too plainly in their haughty triumphs, their cunning interpretation of treaties, their continual violation of justice, their cruel rules of war, and the whole series of their wonderful successes, in the steady progress of the conquest of the world. The perusal of Livy's magnificent history of the rise and progress of the Roman power excites our constant admiration of the vigor, the skill, the valor, and the fortitude of the Roman people; yet, notwithstanding the splendor of the story, and the attractive simplicity of the writer, no reader of taste and principle can well avoid feeling a thorough detestation of the fierce spirit of conquest which it displays, and of the barbarous international law and customs of the ancients.

A purer system of public morals was cultivated, and insensibly gained ground, in the Roman state. The cruelties of Marius in the Jugurthan war, when he put part of the inhabitants of a Numidian town to the sword, and sold the rest for slaves, were declared by Sallust (b) to be a proceeding contra jus belli. At the zenith of the Roman power, the enlarged and philosophical mind of Cicero was struck with extreme disgust, at the excesses in which his countrymen indulged their military spirit. He justly discerned that mankind were not intended, by the law and constitution of their nature, as rational and social beings, to live in eternal enmity with each other; and he recommends, in one of the most beautiful and perfect ethical codes to be met with {7} among the remains of the ancients, the virtues of humanity, liberality, and justice towards other people, as being founded in the universal law of nature. Their ancestors, he observed, applied the term "enemy " to that man whom they regarded merely as a foreigner; but to deny to strangers the use and protection of the city, would be inhuman. To overturn justice by plundering others, tended to destroy civil society, as well as violate the law of nature, and the institutions of heaven; and by some of the most happy illustrations and pathetic examples, Cicero vindicated the truth, and inculcated the value of the precept, that nothing was truly useful which was not honest, (a) In the lat-

gium fetialium was instituted, according to legendary story, as early as the reign of Numa Pompilius, and the efficacy of that institution on the rights of war is declared by Cicero, — belli æquitas sanctissime fetiali populi Romani jure prescripta est.

(b) Sal. Jug. c. 91.

(a) Off. b. 1, sec. 12; b. 3, sec. 5, 6, 7, 11; De Legibus, b. 1.

ter ages of the Roman Empire, when their municipal law became highly cultivated, and adorned by philosophy and science, the law of nations was recognized as part of the natural reason of mankind.¹ Quod vero naturalis ratio inter omnes homines constituit, id apud omnes [gentes] ² peræque custoditur, vocaturque jus gentium, quasi quo jure omnes gentes utuntur. (b) The Roman law was destined to obtain the honorable distinction of becoming a national guide to future ages, and to be appealed to by modern tribunals and writers, in cases in which usage and positive law are silent, as one authoritative evidence of the decisions of the law of nations.

It must be admitted, however, that the sages from whose works the Pandects were compiled speak very indistinctly and imperfectly on the subject of national law. They must be read with much discrimination, as Grotius observed, (c) for they often call that the law of nations which prevailed, and perhaps by casual consent, among some nations only; and many things which belonged to the law of nations they treated indiscriminately with matters of mere municipal law. The Roman jurisprudence, in its most cultivated state, was a very imperfect transcript of the precepts of natural {8} justice on the subject of national duty. It retained strong traces of ancient rudeness, from the want of the Christian system of morals, and the civilizing restraints of commerce. We find the barbarous doctrine still asserted, that prisoners of war became slaves, jure gentium, (a) and even in respect to foreign nations with whom the Romans were at peace, but had no particular alliance, it is laid down in the digests, that whoever passed from one country to the other became immediately a slave. Nam si cum gente aliqua neque amicitiam, neque hospitium, neque fœdus amicitiæ causa factum habemus: hi hostes quidem non sunt: quod autem ex nostro ad eos pervenit, illorum fit: et liber homo noster ab eis captus, servus fit et eorum. Idemque est, si ab illis ad nos aliquid perveniat. (b) It is impossible to conceive of a rule of national law more directly calculated to destroy all commercial intercourse, and to maintain eternal enmity between nations.

(b) Dig. 1. 1. 9; Inst. 1. 2. 1. c) Proleg. sec. 53.

(a) Inst. 1. 3. 4; Dig. lib. 1, tit. 5, § 5, and lib. 49, tit. 15, c. 12, § 1. (b) Dig. 49. 15. 5. 2.

^l Ante, 1, n. 1.

² Populos in the original passage, Gaii Inst. 1. 1.

The irruption of the northern tribes of Scythia and Germany overturned all that was gained by the Roman law, annihilated every restraint, and all sense of obligation; and civil society relapsed into the violence and confusion of the barbarous ages. Mankind seemed to be doomed to live once more in constant distrust or hostility, and to regard a stranger and an enemy as almost the same. Piracy, rapine, and ferocious warfare deformed the annals of Europe. The manners of nations were barbarous, and their maxims of war cruel. Slavery was considered as a lawful consequence of captivity. Mr. Barrington (c) has, indeed, cited the laws of the Visigoths, Saxons, Sicilians, and Bavarians, as restraining, by the severest penalties, the plunder of shipwrecked goods and the abuse of shipwrecked seamen, and as extending the rights of hospitality to strangers. But notwithstanding {9} a few efforts of this kind to introduce order and justice, and though municipal law had undergone great improvement, the law of nations remained in a rude and uncultivated state, down to the period of the 16th century. In many instances, shipwrecked strangers were made prisoners, and sold as slaves, without exciting any complaint, or offending any public sense of justice. Numerous cases occurred of acts of the greatest perfidy and cruelty towards strangers and enemies. Prisoners were put to death for their gallantry and brave defence in war. There was no reliance upon the word and honor of men in power. Reprisals and private war were in constant activity. Instances were frequent of the violation of embassies, of the murder of hostages, the imprisonment of guests, and the killing of heralds. The victor in war had his option in dealing with his prisoners, either to put them to death, or reduce them to slavery, or exact an exorbitant ransom for their deliverance. So late as the time of Cardinal Richelieu, it was held to be the right of all nations to arrest strangers who came into the country without a safe-conduct. (a)

The Emperor Charlemagne made distinguished efforts to improve the condition of Europe by the introduction of order and the propagation of Christianity; and we have cheering examples, during the darkness of the middle ages, of some recognition of

(c) Observations on the Statutes, chiefly the more ancient, 22. (a) Ward's History of the Law of Nations, c. 7, 8, 9.

public law by means of alliances, and the submission of disputes to the arbitrament of a neutral power. Mr. Ward enumerates five institutions, existing about the period of the 11th century, which made a deep impression upon Europe, and contributed, in a very essential degree, to improve the law of nations. (b) These institutions were the feudal system, the concurrence of Europe in one form of religious worship and government, the {10} establishment of chivalry, the negotiations and treaties forming the conventional law of Europe, and the settlement of a scale of political rank and precedency.

Of all these causes of reformation, the most weight is to be attributed to the intimate alliance of the great powers as one Christian community. The influence of Christianity was very efficient towards the introduction of a better and more enlightened sense of right and justice among the governments of Europe. It taught the duty of benevolence to strangers, of humanity to the vanquished, of the obligation of good faith, and of the sin of murder, revenge, and rapacity. The history of Europe, during the early periods of modern history, abounds with interesting and strong cases, to show the authority of the church over turbulent princes and fierce warriors, and the effect of that authority in meliorating manners, checking violence, and introducing a system of morals, which inculcated peace, moderation, and justice. The church had its councils or convocations of the clergy, which formed the nations professing Christianity into a connection resembling a federal alliance, and those councils sometimes settled the titles and claims of princes, and regulated the temporal affairs of the Christian powers. The confederacy of the Christian nations was bound together by a sense of common duty and interest in respect to the rest of mankind. It became a general principle of belief and action, that it was not only a right, but a duty, to reduce to obedience, for the sake of conversion, every people who professed a religious faith different from their own. To make war upon infidels was, for many ages, a conspicuous part of European public law; but this gross perversion of the doctrines and spirit of Christianity had at least one propitious effect upon the Christian powers, inasmuch as it led to the cultivation of peace and union between them, and to a more free and civilized intercourse. The notion that it was (b) Ward's History of the Law of Nations, i., 322-328.

lawful to invade and subdue Mahometan and Pagan countries continued very long to sway the minds of men; and it was not till after the age of Grotius and Bacon that {11} this error was entirely eradicated. Lord Coke (a) held that an alliance for mutual defence was unlawful between Christians and Turks; and Grotius was very cautious as to the admission of the lawfulness of alliances with infidels, and he had no doubt that all Christian nations were bound to assist one another against the attacks of infidels, (b) Even Lord Bacon (c) thought it a matter of so much doubt as to propound it seriously as a question, whether a war with infidels was not first in order of dignity, and to be preferred to all other just temporal quarrels; and whether a war with infidels might not be undertaken merely for the propagation of the Christian faith, without other cause of hostility.

The influence of chivalry was beneficial upon the laws of war.^l It introduced declarations of war by heralds; and to attack an enemy by surprise was deemed cowardly and dishonorable. It dictated humane treatment to the vanquished, courtesy to enemies, and the virtues of fidelity, honor, and magnanimity in every species of warfare.

The introduction and study of the civil law must also hare contributed largely to more correct and liberal views of the rights and duties of nations. It was impossible that such a

(a) 4 Inst. 155.

(b) Grotius, b. 2, c. 15, sec. 11, 12. The university of Salamanca, as early as 1550, decided in favor of Las Casas upon the thesis maintained by Sepulveda, and refuted by Las Casas, that it was a right and duty to make war upon Pagans and Heretics, in order to propagate the true faith. But the minds of men in Catholic countries remained long unsettled on this point, and the doctrines of Sepulveda are said to have been sanctioned within the period of the last fifty years, by the Royal Academy of History at Madrid. (Dict. Hist. art. Sepulveda. Verplanck's Discourse before the New York Historical Society, 1818.) Even as late as 1718, the Emperor Charles VI, commissioned two ships of war to cruise "through any seas, far ant wide, to follow and pursue any such as are the enemies of our august house, but chiefly the enemies of the Christian name." The commission was dated at Vienna, July 16, 1718. But afterwards the commission was restricted by an additional instruction, dated at Brussels, 28th September, 1718, to war "against the Spaniards, but not against any other power, though even enemies to the Christian name." See the commission at large in Callender's Voyages, iii. 447, 450.

(c) Bacon's Works, iii. 472, 492.

¹ Maine, Anc. Law, c. 4, explains the influence of feudalism »n international law. [See also Amos, Lect, on Int Law, p. 21.]

refined and wise system of municipal and ethical jurisprudence as the Roman law could have been taught in universities and schools, and illustrated by a succession of eminent civilians, who were worthy of being associated with the Roman sages, without at the same time producing a great effect upon the public mind. This grand monument of the embodied wisdom of the ancients, when once known and examined, must have reflected a broad stream of light upon the feudal institutions and the public councils of the European nations. We accordingly find that the rules of the civil law were applied to the government of national rights, and they have {12} contributed very materially to the erection of the modern international law of Europe. Prom the 13th to the 16th century all controversies between nations were adjudged by the rules of the civil law.

Treaties, conventions, and commercial associations had a still more direct and visible influence in the formation of the great modern code of public law. They gave a new character to the law of nations, and rendered it more and more of a positive or instituted code. Commercial ordinances and conventions contributed greatly to improve and refine public law and the intercourse of nations, by protecting the persons and property of merchants in cases of shipwreck, and against piracy, and against seizure and arrest upon the breaking out of war. Auxiliary treaties were tolerated, by which one nation was allowed to be an enemy to a certain extent only. Thus, if in time of peace a defensive treaty had been made between one of the parties to a subsequent war and a third power, by which a certain number of troops were to be furnished in case of war, a compliance with this engagement implicated the auxiliary as a party to the war, only so far as her contingent was concerned. The nations of Europe had advanced to this extent in diplomatic science as early as the beginning of the 13th century, and such a refinement was totally unknown to the ancients, (a) Treaties of subsidy showed also the progress of the law of nations. The troops of one nation, to a definite extent, could be hired for the

(a) Under Henry III., in 1240, the Flemings obtained leave to carry on their trade as usual, when England and France were at war, so long as they took no other part in the war than what their earl, under his feudal relation to the crown of France, was called upon by reason of his homage to perform. Southey's Early Naval History of England, i. 180.

service of one of the belligerents, without affording ground for hostility with the community which supplied the specific aid. The rights of commerce began to be regarded as under the protection of the law of nations, and Queen Elizabeth complained of the Spaniards, that they had prohibited commerce in the Indian seas, contrary to that law.

The efforts that were made, upon the revival of commerce, to suppress piracy and protect shipwrecked property show a returning sense of the value and of the obligations of national justice. The case of shipwrecks may be cited, and dwelt upon for a moment, as a particular and strong instance {13} of the feeble beginnings, the slow and interrupted progress, and final and triumphant success of the principles of public right. Valin (a) imputes the barbarous custom of plundering shipwrecked property, not merely to the ordinary cupidity for gain, but to a more particular and peculiar cause. The earliest navigators were almost all pirates, and the inhabitants of the coasts were constantly armed against their depredations, and whenever they had the misfortune to be shipwrecked, they were pursued with a vindictive spirit, and deemed just objects of punishment. The practice of plundering shipwrecks has been traced to the Rhodians, and from them it passed to the Romans; and the efforts to restrain it were very feeble and gradual, and mixed with much positive injustice. The goods cast ashore first belonged to the fortunate occupant, and then they were considered as belonging to the state. This change from private to public appropriation of the property rendered a returning sense of right and duty more natural and easy. The Emperors Hadrian and Antoninus had the honor of having first renounced the claim to shipwrecked property in favor of the rightful owner. (b) But the inhuman customs on this subject were too deeply rooted to be eradicated by the wisdom and vigilance of the Roman lawgivers. The laws in favor of the unfortunate were disregarded by succeeding emperors, and when the empire itself was overturned by the northern barbarians, the laws of humanity were swept away in the tempest; and the continual depredations of the Saxons and Normans induced the inhabitants of the western coasts of Europe to treat all navigators, who were thrown by the

(a) Com. sur Ord. ii. 579-587.

(b) Vinnius in Inst. lib. 2, tit. 1, art. 47, note 5; Valin, ubi supra.

perils of the sea upon their shores, as pirates, and to punish them as such, without inquiry or discrimination.

The Emperor Andronicus Comnenus, who reigned at Constantinople in 1183, made great efforts to repress this inhuman practice. His edict was worthy of the highest {14} praise, but it ceased to be put in execution after his death. Pillage had become an inveterate moral pestilence. It required something more effectual than papal bulls and the excommunication of the church to stop the evil. The revival of commerce, and with it a sense of the value of order, commercial ordinances, particular conventions and treaties between sovereigns, contributed gradually to suppress this criminal practice, by rendering the regulations on that subject a branch of the public law of nations. Valin says, it was reserved for the ordinances of Louis XIV. to put the finishing stroke to this species of piracy, by declaring that shipwrecked persons and property were placed under the special protection and safeguard of the crown; and the punishment of death, without hope of pardon, was pronounced against the guilty, (a)¹

The progress of moderation and humanity in the treatment of prisoners is to be imputed to the influence of Christianity, and of conventional law, establishing a general exchange of prisoners, rank for rank, and giving protection to cartel ships for that purpose. It is a practice of no very ancient introduction among the states of Europe, and it was not of very familiar use in the age of Grotius, and it succeeded the elder practice of ransom. From the

(a) The sense of justice, in respect to shipwrecks and piracy, has made its way into the kingdom of Siam, in Eastern India; and by a treaty with the United States, in April, 1836, persons and property in American vessels, suffering shipwreck in the Siamese dominions, or taken by pirates and brought therein, are to be carefully protected, preserved, and restored. By the treaty of commerce and navigation between the United States and Hanover, May 20, 1840, art. 8, assistance is to be given to the shipwrecked and stranded vessels, and no more than the ordinary salvage or duties, on unlading the cargo for repairs in such cases, shall be demanded. The treaty likewise specially declares, "that the ancient and barbarous right to wrecks of the sea shall be entirely abolished, with respect to the property of the subjects or citizens of the contracting parties." Such a stipulation between two civilized and Christian nations, near the middle of the 19th century, sounds oddly, and might as well have been spared.

¹ See Lawrence's Wheaton, App. 2; Chew, ib. 1101; and with Japan, 11 id. Treaties of the United States with Borneo, 597, art. 3. 10 U. S. St. at L. 909, art. 8; with Lew-

extracts which Dr. Robinson (b) gives from Bellus, who was a judge or assessor in the armies of Charles V. and Philip II., he concludes that no practice so general, and so favorable to the conduct of prisoners, as a public exchange in time of war, was known in the 16th century, (c) The private interest of the captor in his prisoner, and his right to claim ransom money, continued through that period; and the practice of ransom, founded on the right of property claimed by the captor, succeeded to the Greek and Roman practice of killing prisoners, or selling them as slaves.

The custom of admitting resident ministers at each sovereign's court was another important improvement in the security and facility of national intercourse; (d) and this led {15} to the settlement of a great question, which was very frequently discussed in the 15th and 16th centuries, concerning the inviolability of ambassadors. It became at last a definitive principle of public law, that ambassadors were exempted from all local jurisdiction, civil and criminal; though Lord Coke considered the law in his day to be, that if an ambassador committed any crime which was not merely malum prohibitum, he lost his privilege and dignity as an ambassador, and might be punished as any other private alien, and that he was even bound to answer civilly for his contracts that were good, jure gentium. (a)¹

Thus stood the law of nations at the age of Grotius. It had

(b) 3 Rob. Adm., Appendix A.

(c) When Sir Richard Hawkins, in his armed ship Dainty, was captured in the South Sea, after a desperate engagement, in 1594, the Spanish commander, Don Beltran, an officer of great gallantry, courtesy, and humanity, claimed, nevertheless, a property in his prisoner, and the right to a ransom. Callender's Voyages, ii. 126, 134. The custom of enslaving prisoners of war was continued in Europe down to the 13th century, and was then extinguished, though asserted even by Grotius, De Jure Belli, lib. 3, c. 7, to be conformable to the law of nations. It was discontinued under the influence of Christianity, though the right to the ransom of prisoners as the subjects of property was continued to a much later period.

(d) Ferdinand the Catholic is said to have introduced the practice of resident ministers. Prescott's Hist. of Ferdinand and Isabella, i. 352. The right of sending public ministers to the confederate states, and to foreign states, is preserved to all the princes and states composing the present Germanic Confederation (1844), and so it is in that of the Swiss Cantons; but the privilege is wisely taken away from the several states by the Constitution of the United States of America.

(a) 4 Inst. 153.

¹ Magdalena Steam Nav. Co. v. Martin, 2 El. & El. 94; Taylor v. Best, 14 C. B.

487.

been rescued, to a very considerable extent, from the cruel usages and practices of the barbarians. It had been restored to some degree of science and civility by the influence of Christianity, the study of the Roman law, and the spirit of commerce. It had grown in value and efficacy, from the intimate connection and constant intercourse of the modern nations of Europe, who were derived from a common origin, and were governed by similar institutions, manners, laws, and religion. But it was still in a state of extreme disorder, and its principles were little known, and less observed. It consisted of a series of undigested precedents, without order or authority. Grotius has, therefore, been justly considered as the father of the law of nations. He arose like a splendid luminary, dispelling darkness and confusion, and imparting light and security to the intercourse of nations. It is said by Barbeyrac, (b) that Lord Bacon's works first suggested to Grotius the idea of reducing the law of nations to the certainty and precision of a regular science. Grotius has himself fully explained the reasons which led him to undertake his necessary, and most useful and immortal work, (c) He found the sentiment universally prevalent, not only among the vulgar, but among men of reputed wisdom and learning, that war {16} was a stranger to all justice, and that no commonwealth could be governed without injustice. The saying of Euphemus in Thucydides, he perceived to be in almost every one's mouth, that nothing which was useful was unjust. Many persons, who were friends to justice in private life, made no account of it in a whole nation, and did not consider it as applicable to rulers. He perceived a horrible licentiousness and cruelty in war, throughout the Christian world, of which barbarians might be ashamed. When men took up arms, there was no longer any reverence for law, either human or divine; and it seemed as if some malignant fury was sent forth into the world, with a general license for the commission of all manner of wickedness and crime, (a) The object of Grotius was to correct these false theories and pernicious maxims, by showing a community of sentiment among the wise and learned of all nations and ages, in favor of the natural law of morality. He likewise undertook to show that justice was of perpetual obligation, and essential to the well-being

(b) Puff. sec. 29.

(a) Proleg. sec. 3 and 28.

(c) Proleg. De Jur. Bel.

of every society, and that the great commonwealth of nations stood in need of law, and the observance of faith, and the practice of justice. His object was, to digest in one systematic code the principles of public right, and to supply authorities for almost every case in the conduct of nations; and he had the honor of reducing the law of nations to a system, and of producing a work which has been resorted to as the standard of authority in every succeeding age. The more it is studied, the more will our admiration be excited at the consummate execution of the plan, and the genius and erudition of the author. There was no system of the kind extant that had been produced by the ancient philosophers of Greece, or by the primitive Christians. The work of Aristotle on the rights of war, and the writings of the Romans on their fecial law, had not survived the wreck of ancient literature; and the essays of some learned moderns on public law were {17} most imperfect, and exceedingly defective in illustrations from history, and in omitting to place their decisions upon the true foundations of equity and justice, (a) Grotius, therefore, went purposely into the details of history and the usages of nations, and he resorted to the works of philosophers, historians, orators, poets, civilians, and divines for the materials out of which the science of public morality should be formed; proceeding on the principle, that when many men, at different times and places, unanimously affirmed the same thing for truth, it ought to be ascribed to some universal cause. (b) His unsparing citation of authorities, in support of what the present age may consider very plain and undisputed truths, has been censured by many persons as detracting from the value of the work. On the other hand, the support that he gave to those truths, by the concurrent testimony of all nations and ages, has been justly supposed to contribute to that reverence for the principles of international justice which has since distinguished the European nations.

Among the disciples of Grotius, Puffendorf has always held the first rank. His work went more at large into the principles of natural law, and combined the science of ethics with what may be more strictly called the law of nations. It is copious in

(a) Proleg. of Grot. sec. 36, 37, 38.

(b) Omni autem in re consensio omnium gentium lex natura putanda est. Cic. Tusc. Disp. lib. 1, c. 13.

detail, but of very little practical value in teaching us what the law of nations is at this day. It is rather a treatise on moral philosophy than on international law; and the same thing may be said of the works of Wolfius, Burlamaqui, and Rutherforth. The summary of the law of nations, by Professor Martens, is a treatise of greater practical utility, but it is only a very partial view of the system, being confined to the customary and conventional law of the modern nations of Europe, (c) Bynkershoek's treatise on the laws of war has been received as of great authority on that particular branch of the science of the law of nations, and the subject is by him ably and copiously {18} discussed. The work is replete with practical illustration, though too exclusive in its references to the ordinances of his own country to render his authority very unquestionable. The most popular and the most elegant writer on the law of nations is Vattel, whose method has been greatly admired. He professed to have followed the voluminous work of Wolff on the Law of Nature and Nations, and to be enlightened and guided by his learning, with much improvement upon the doctrine and arrangement of his great master. He has been cited, for the last half-century, more freely than any one of the public jurists; but he is very deficient in philosophical precision. His topics are loosely and often tediously and diffusively discussed, and he is not sufficiently supported by the authority of precedents, which constitute the foundation of the positive law of nations. There is no work which combines, in just proportions and with entire satisfaction, an accurate and comprehensive view of the necessary and of the instituted law of nations, and in which principles are sufficiently supported by argument, authority, and example, (y) Since the age of Grotius, the code of war has been

(c) Wheaton, in his History of the Law of Nations, edit. N. Y. 1845, says that the treatise of Martens, of which a third edition in French appeared in 1821, Précis du Droit des Gens Modernes de l'Europe fondé sur les Traités et l'Usage, has become a justly esteemed manual of the science.

(y) [The most considerable additions to the literature of international law since 1873 are the work of Hall, already cited, the discussions of various questions of international law found in the Revue de Droit International, and the reports of the meetings of the Institut de Droit International, which are given in the Revue de Droit International. While it cannot be said that the modifications and ameliorations of international law advocated in these writings have become a part of the law, yet there can be no doubt that such writings and discussions will prove a considerable influence

vastly enlarged and improved, and its rights better defined, and its severities greatly mitigated. The rights of maritime capture, the principles of the law of prize, and the duties and privileges of neutrals, have grown into very important titles in the system of national law. We now appeal to more accurate, more authentic, more precise, and more commanding evidence of the rules of public law, by a reference to the decisions of those tribunals to whom, in every country, the administration of that branch of jurisprudence is specially intrusted. We likewise appeal to the official documents and ordinances of particular states, which have professed to reduce into a systematic code, for the direction of their own tribunals, and for the information of foreign powers, the law of nations on those points which relate particularly to the rights of commerce and the duties of neutrality, (x) But in the absence of higher and more authoritative sanctions, the ordinances of foreign states, the opinions of eminent statesmen, and the writings of distinguished jurists are regarded as of great consideration on questions not settled by conventional law. In cases where the principal jurists agree, the presumption will be very great in favor of the solidity of their {19} maxims; and no civilized nation that does not arrogantly set all ordinary law and justice at defiance will venture to disregard the uniform sense of the established writers on international law. England and the United States have been equally disposed to acknowledge the authority of the works of jurists writing professedly on public law and the binding force of the general usage and practice of nations, and the still greater respect due to judicial decisions recognizing and enforcing the law of nations.¹ In all our foreign negotiations and domestic discussions of questions of national law we have paid the most implicit respect to the practice of Europe and the opinions of her most distinguished civilians. In England, the report made in 1753, to the king, in answer to the Prussian memorial, is very satisfactory evidence of the obedience shown to the great stand-

in shaping the development of the law, when circumstances arise which force nations to a consideration and determination of the points involved. — B.]

¹ Wheaton, Dana's note 11.

(x) la ascertaining facts within the judicial notice of the courts, the judges may properly inquire of the Department

of State, when they relate to international affairs. Jones v. United States, 137 U. S. 202.

ing authorities on the law of nations, to which I have alluded. And in a case which came before Lord Mansfield, in 1764, in the K. B., (a) he referred to a decision of Lord Talbot, who had declared that the law of nations was to be collected from the practice of different nations and the authority of writers; and who had argued from such authorities as Grotius, Barbeyrac, Bynkershoek, Wicquefort, &c., in a case where British authority was silent. The most celebrated collections and codes of maritime law, such as the Consolato del Mare, the laws of Oleron, the laws of the Hanseatic league, and, above all, the marine ordinances of Louis XIV., are also referred to as containing the most authentic evidence of the immemorial and customary law of Europe, (y)

(a) Triquet v. Bath, 3 Burr, 1478.

(y) Amos, in his Lectures on International Law, gives the following as the sources of international law: I. Eminent writers. II. Ancient laws. III. Treaties. IV. Diplomatic documents. V. Decisions of tribunals.

In Reg. v. Keyn, 2 Ex. D. 63, Brett, J. A. said (p. 132): "In my opinion, the long list of great authorities to which I have referred and the constant practice of the English International Court, nay, I think, of all English Courts, show that it is considered that all countries have recognized that the consent of them all, as sovereigns, may and should be inferred in favor of a reasonable proposition from a common consent to it of all, or of such a considerable number as to amount substantially to all, recognized writers on international law, although there be no other evidence of their sovereign assent." Lord Coleridge (p. 154) said: "Treaties and acts of state are but evidence of the agreement of nations, and do not in this country at least per se bind the tribunals. Neither, certainly, does a consensus of jurists; but it is evidence of the agreement of nations on international points; and on such points, when they arise, the English Courts give effect, as part of the English law, to such agreement. Regard-

ing jurists, then, in the light of witnesses, it is their competency rather than their ability which most concerns us." And Cockburn, C. J. (p. 202) said: "Writers on international law, however valuable their labors may be in elucidating and ascertaining the principles and rules of law, cannot make the law. To be binding, the law must have received the assent of the nations who are to be bound by it. This assent may be express, as by treaty or the acknowledged concurrence of governments, or may be implied from established usage,

— an instance of which is to be found in the fact that merchant vessels on the high seas are held to be subject only to the law of the nation under whose flag they sail, while in the ports of a foreign state they are subject to the local law as well as to that of their own country. In the absence of proof of assent, as derived from one or other of these sources, no unanimity on the part of theoretical writers would warrant the judicial application of the law on the sole authority of their views or statements. Nor, in my opinion, would the clearest proof of unanimous assent on the part of other nations be sufficient to authorize the tribunals of this country to apply, without an Act of Parliament, what would practically amount to a new law.

The dignity and importance of this branch of jurisprudence cannot fail to recommend it to the deep attention of the student; and a thorough knowledge of its principles is necessary to law-

In so doing we should be unjustifiably usurping the province of the legislature."

In the arguments before the Behring Sea Tribunal of Arbitration, at Paris, in 1893, Hon. James C. Carter, as counsel, derived International Law mainly from the "Law of Nature," while Sir Charles Russell defined it as follows: "International Law, properly so called, is only so much of the principles of morality and justice as the nations have agreed shall be part of those rules of conduct which shall govern their relations one to another;" and elsewhere said that it "has long passed the stage at which an appeal to any vague, general principles can afford any safe, certain resting-place, or guide at all. It is now. and it has long been, a body of derivative principles and concrete rules, formed by the action and reaction upon each other of custom, moral feeling, and convenience."

Mr. Justice Harlan as one of the arbitrators of this tribunal said (Opinions of Mr. Justice Harlan, p. 133): — "The counsel for the United States contended, in argument, that in determining what rights are recognized by the law of nations, the Tribunal is not to ignore, but must give effect to, those principles of right reason, justice, humanity, and morality which have their foundation in the law of nature as applied to the institution of property. This view was earnestly combated by the counsel of Great Britain, and it was, in effect, said that the teachings and precepts of the law of nature were of no importance in the present inquiry; that the rights of these two nations could not be made to depend, in any degree, upon abstract principles founded only on reason, justice, humanity, or morality, but must be determined upon grounds of positive law, resting in the affirmative assent of the nations, inde-

pendently of ethical considerations arising out of distinctions which the conscience of the world makes between what is morally right and what is morally wrong, or between what is supported by sound reason and justice and what is not so supported. "Of course, if there be any settled, recognized rules of the law of nations governing the particular question under consideration, they must control our decision whatever may be our view of their justice. The two nations interested are bound by such rules, and the Tribunal may not disregard them, or refuse to give effect to them. But if the precise case before it is not covered by some positive rule, decision or precedent, founded on the conventions or established usages of the civilized nations of the earth, and expressly set forth in the writings of public jurists, we are not, for that reason, to hold that it is not provided for by the law of nations. As a court sitting under municipal authority would be bound, in the absence of precedent, to give judgment according to the principles of right derived from the whole body of the law to which it may properly refer, so this Tribunal, constituted for the determination of questions depending upon the law of nations, may, and if it fulfils the objects for which it was constituted, must, look into the recognized sources of that law and seek in the domain of general jurisprudence for the rule of decision in the case before it. One of the recognized sources of the law of nations are the principles of natural reason and justice applicable to the relations and intercourse of independent political societies. Those principles may be said to have their origin in the Law of Nature, or in what is sometimes called the Natural Law of Equity, because approved by the moral sense of

yers and statesmen, and highly ornamental to every scholar who wishes to be adorned with the accomplishments of various learning. Many questions arise in the course of commercial

mankind. No earthly tribunal, administering justice between individuals, or between nations, if unfettered by statute, or by binding precedent, may rightfully disregard the rules of reason, morality, humanity, and justice derived from that law. Those rules are not the less binding because not formulated in some book, ordinance, or treaty. Certainly, this Tribunal of Arbitration must regard the rules of international morality and justice, applicable to the subject, and fairly to be deduced from the rights and duties of States and from the nature of moral obligations, as an integral part of the law of nations by which the matters submitted to it are to be determined. The institution of property is ordained by society for its improvement and preservation. And there are certain rules, arising out of the very necessities of that institution, which are common to the jurisprudence of all civilized nations. While these rules may be more frequently found recognized in municipal law, they are so grounded in the well being of man, and so thoroughly supported by right reason, and natural justice, as to have become universally recognized, and, therefore, must be regarded as part of the common law of civilized countries. Nations, no more than individuals, may disregard those rules, for upon their observance depends the existence of organized society and the security of government among civilized peoples." As to the Behring Sea arbitration, see 21 Journal du Droit Int. 36; 25 Revue de Droit Int. 417; 26 id. 386; infra, p. 30, n. (x).

Other writers speak as follows: "The point of view of international law presents law without any sanction whatever. The parties are all sovereign. There is no superior, and, therefore, no positive law is possible. The appeal in all controversy must be to generally recognized principles

of justice and equity.... Where there are no treaty rights and no precedents, disputes between nations are often arbitrated by appeal to the principles of national equity." Prof. J. G. Hibben in International Journal of Ethics for Jan. 1894, p. 156, quoted in part in 49 Alb. L. J. 13. "International Law was not declared by a legislature, and it still suffers from want of a regular legislature to improve and to develop it. It is still developed by the antiquated method of writer commenting on writer, no security being nowadays taken for the competence or authority of the writer except vague opinion.... International Law suffers also from the absence of any method of authoritatively declaring its tenor on some of its branches, and above all from the absence of any method of enforcing its rules short of war or fear of war." Maine's Int. Law, 52. "We find that the sources of International Law are several and distinct. One writer deduces it from the will of God, a second from the Roman Law, a third from the Canon Law, a fourth from the Law of Nature, a fifth from a supposed commonwealth or society of nations existing as moral beings, a sixth from principles of utility, a seventh from treaties and practices, and others from an amalgamation of some or all of these particular sources." Griffith on Int. Law, p. 25.

The necessity of a codification of the rules of International Law, and of an International Court of Justice, is generally recognized. See 21 Revue de Droit International, 521; 25 id. 321, 521, 569; 26 id. 349, 511; 30 L. J. 226; 24 Am. L. Rev. 114. Upon international arbitration, see 24 Am. L. Rev. 897; 8 Harvard L. Rev. 107. Upon the early history of International Law, see 26 Revue de Droit Int. 254, 461.

transactions which require for {20} their solution an accurate acquaintance with the conventional law of Europe and the general doctrines of the prize tribunals. Though we may remain in peace, there is always war raging in some part of the globe, and we have at the present moment (a) neutral rights to exact, and neutral duties to perform, in the course of our Mediterranean trade, and in the trade to the Brazils, and along the shores of the Pacific. A comprehensive and scientific knowledge of international law is highly necessary, not only to lawyers practising in our commercial ports, but to every gentleman who is animated by liberal views and a generous ambition to assume stations of high public trust. It would be exceedingly to the discredit of any person who should be called to take a share in the councils of the nation, if he should be found deficient in the great leading principles of this law; and I think I cannot be mistaken in considering the elementary learning of the law of nations, as not only an essential part of the education of an American lawyer, but as proper to be academically taught. My object, therefore, in some succeeding lectures will be to discuss all the leading points arising upon the rights and duties of nations in the several relations of peace, of war, and of neutrality.

(a) November, 1824.