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NATURE AND AUTHORITY OF INTERNATIONAL LAW.
INTERNATIONAL LAW, or Jus inter gentes, is composed of two distinct elements, the Natural and the Conventional. The Natural, or what is designated as the Law of Nature, is common to all nations, for it embraces those principles which are implanted by God in the heart and mind of every man, of whatever race or clime. It is characterized, in a general sense, as a Law, because its observance leads to peace and happiness, and its disregard to war and misery. Unfortunately, however, natural or moral Laws impose only imperfect duties, and, therefore, in so far as International Law depends upon, and consists of the Law of Nature, it is of necessity of uncertain obligation. The Conventional, or positive element of International Law, is that which results from express obligations, undertaken by States in the shape of treaties, agreements, declarations, and
also from precedents and leading Cases, establishing the customary practice of States. These two elements, the Natural and the Conventional, are either intermixed or separate. There may be a natural obligation, where there is not a conventional, though there is scarcely a conventional obligation, without the natural element bound up with it. But of the two elements, the Natural, which is the most unchangeable and universal, is also the less certain in its operation and authority. Could we give to the universal principles of Natural Law the same certainty and binding force as are possessed by the Conventional, we would not have to lament—to the same extent, at any
ratethe weakness and uncertainty which characterize by far the greatest portion of the Law of Nations.
We must not confound International Law with politics, or the political system of a Nation. Political Science is that part of social science which treats of the principles of Government. In theory, it seeks to establish Laws drawn from experience and reason, sometimes as the generalized expression of facts, and sometimes as the pure conception of an ideal more or less realizable. In practice, it aims to give effect to such general principles, with due regard to opportunity, time, place, and circumstances. The political systems of States differ according to the character of different races and peoples. The Orientals, by uniting in one system theology and politics, create a theocratic régime hard and inflexible. Western nations,
less fettered, are better able to adapt their systems of politics to the condition of Society.
International Law, as a branch of Jurisprudence, is the creation of moralists, moulded by the acumen of jurists and the wisdom of statesmen. What perplexed mediæval theologians was—Can a Christian engage in war? To whom belongs the right of declaring war? What causes will justify a resort to war ?
In a just war, what are the rights of Belligerents ?
Can a Christian make war against an Infidel on no other ground but his infidelity ? Has the Pope the right to sanction war against an Infidel ? Can the Emperor sanction it, since he is not the master of the world ? Are we bound to keep faith with the enemy? Jurists are not fond of hypothetical questions, but they were early led to consider many legal questions arising from the relations of States and the rights of Embassies.
Grotius combined in a conspicuous manner the character of a jurist and a theologian, and was able to weigh with even hand the often conflicting rights of morals and law. The spirit in which he entered on his work, “De Jure Bellis et Pacis," may be seen from the opening statement. “I have been for a long time convinced that there is a God common to all Nations, who watches both the preparation and the course of war. I have seen, on all sides, in the Christian World, such a wanton licence in war,
* Prelimin. Discourse, $ xxix.
the most barbarous nations would have reason to blush for it. People run to arms without reason, or for the slightest reason, and they trample under foot all Divine and human laws, as if they were justified and resolved to commit all sorts of crimes without any check whatever.” Are there no Laws, positive or natural, binding nations not to indulge in such barbarities? Grotius reviewed all the dicta and sayings of philosophers and moralists, consulted the practice of ancient and modern nations, examined the teaching of the Bible on matters of peace and war, and endeavoured to arrive at a kind of universal consensus on the subject, in the hope that no civilized State would feel itself at liberty to depart from the same.
The critical point in International Law, doubtless, is the lawfulness or unlawfulness of war, and it is unfortunate that the great authority of Grotius was not more decisively expressed against a system so fraught with misery and destruction. Who, indeed, can reflect on the sacredness of human life, in view of its eternal destinies, without coming to the conclusion that war, with its attendants, hatred, destruction, and slaughter, is incompatible with the high dictates of religion? It was not in vain, however, that Grotius wrote his splendid work. And the numerous writers who followed him in developing the principles of International Law have by their appeals to reason, conscience, and self-interest, for some re