tion. majesty of International Law. For when we remember Introducwhat have ever been professed to be its primary objects, viz. the independence of nations, the inviolability of their several territories, and the maintenance of their honour, it stands to reason that the happiness of states is bound up with the fate and fortunes of this law: "a law whose existence and application," says Daniel Webster, "is as advantageous to states as the existence of private law to the citizens of a country." The faithful observance of this law then is essential to national character and to the happiness of mankind: a necessity not the less urgent, if what Montesquieu says of it be true, "that it is based upon the principle that different nations ought to do each other as much good in peace and as little harm in war as possible, without injury to their true interests'." And yet in spite of the advantages which the civilized world has reaped from the cultivation of International Law as a science, it cannot be denied that there are objections of no slight character to it as a system, and no slight difficulties in the way of its study. For whilst on the one hand, the absence of a general tribunal, common judges, and all the means to enforce obedience to its dictates which municipal law commands, lays it too much at the mercy of powerful nations, whose passions often interrupt the peaceful progress of this code; on the other, the want of a clear and precise definition of its precepts, and a recognised authoritative classification of its various parts, are serious lets and hindrances to a proper appreciation of it as a science. The best way to reply to those objections, and endeavour to remove these difficulties, is to shew that the legal principles by which nations ought to be bound in their external and international communications are capable of being explained in an orderly and methodical sequence. But some of the difficulties environing the study of International Law meet the student at the very outset of his work; for, if in the progress of his labours he necessarily finds oft-disputed and still unsettled points arising out of the conflict between belligerent and neutral claims, if even in times of peace, he finds nice questions of International Law to which known doctrines do not apply; he finds also to his surprise, that the very sphere and scope, the foundation, the elements, and the Esprit des Lois, Liv. 1. ch. 3. 1 Introduc- evidence of the science are disputed points, and that in these preliminaries the highest authorities differ. tion. International Law, its definition. Sources of tional Law. It has no sanction. Indeed, these disputes have commenced at the very threshold of the subject', and much has been written to establish with accuracy its true title-much that need not here be repeated; for if it be an established fact that the subjects of the law we are now discussing, those who are influenced by and act upon its rules, are sovereign and independent, acknowledging no one superior authority by whom commands can be enforced; if, on the other hand, laws are rules set by a determinate rational being, or a determinate body of rational beings, to determinate rational beings owing obedience, there can be no such thing as a uniform body of rules to govern them, or one that shall come within the term Law of Nations, any more than there can be a uniform body of such law. Rejecting then the title Law of Nations, and adhering to that of International Law, "as a definite and expressive term," which though not altogether accurate, is convenient and now in common currency, the next step is to note what it means, to describe what International Law is, so as to avoid blending and confounding International Law as it is with International Law as it ought to be3. By the term International Law we mean that collection of rules, customary, conventional and judicial, which independent states appeal to for the purpose of determining their rights, prescribing their duties and regulating their intercourse, in peace and war. Hence it follows, first, that the sole source of this law, the fountain from which it flows, whether in its customary, conventional, or judicial-customary shape, is the consent of nations. Secondly, this body of rules is utterly deficient in one important element of law proper, namely, a sanction. However sound, however useful, however long established, any or all of these rules may be, for their infraction there is but one real remedy, the sword; for although public opinion may be and often is appealed to with considerable force, in cases of violation of international morality, yet such appeal is not always attended with success, and at best it affords but a precarious defence against the acts of 1 See for the whole discussion and the authorities, Wheaton, Elements, ed. 1863, Vol. 1. pp. 18-20. 2 Austin, p. 285 (Note), 2nd ed. tional Law. Its rules not com mands. powerful wrong-doers. Therefore, thirdly, of the body of InternaInternational Law we never can predicate that its rules are commands; we cannot assert that they shall be obeyed, because they have through long observance grown into a sort of law; we can only say they ought to be obeyed because of their long observance and of their consequent utility. Hence, fourthly, neither the law of God, nor Law of positive rules of morality, nor the law of nature (whatever that may be), can be considered as the source or foundation of International Law, or as exercising any absolute necessary influence upon international relations. We say an absolute necessary influence; for the existence of certain moral rules, which nations ought to observe, cannot be denied. Meanwhile it remains to add a few words upon the Sphere of International Law, and upon what some writers call its Sources, others its Foundation, but what, to speak correctly, is its Evidence; that is, the places where the acts of nations which recognise and give rise to reciprocal rights exist. nature not its source. Between International Law and Public (or Munici- Its sphere. pal) Law there is this strong line of demarcation'—that whereas in the latter the social body is separated into two distinct legal or moral personages (the Sovereign and the People), and their mutual relationship is an object of interest to that law; in the former the whole social body is united into one sovereign independent state, and only its relations with other such bodies are the subject of its investigations. Now in those relations the acts of which such bodies are capable can be arranged in three divisions. In the first class are comprised actions which, though morally right and praiseworthy, cannot be enforced; in the second, actions which are morally right and whose performance can be compelled by coercion; in the third class are found actions which are morally wrong and which may be prohibited and prevented by resistance, or any forcible means. The actions comprised in these two last divisions form the sphere, and the rules on which the settlement of difficulties connected with them depends are the component parts, of International Law as distinct from International Morality. 1 Schmalz, Liv. 1. ch. 1. p. 6. French edit. 1823. International Law. Its evidence. Its twofold division. An important question therefore arises, viz. How are we to ascertain these rules? Are there places where such information exists as may throw light upon them? In other words, where are we to look for the evidence of these rules? "The Law of Nations," says Sir William Scott, "is fixed and evidenced by general, ancient, and admitted practice, by treaties and by the general tenor of the laws, ordinances and formal transactions of civilized states." According to this great authority therefore the evidence of International Law is to be found in the history, the practice, and the contracts of nations. His opinion however, in addition to the defect of want of precision, is open to another objection-that of want of completeness. Accordingly, Mr Wheaton extends the list and enumerates the following, as composing the evidence of the law we are engaged upon. First. Text writers of authority whom he calls, with some exaggeration, the witnesses of the sentiment and usages of civilized nations. Secondly. Treaties of peace, alliance, and commerce. Thirdly. Marine ordinances of particular states3. Fourthly. The adjudications of international tribunals. Fifthly. The written opinions of official jurists given confidentially to their own governments. Sixthly. The history of wars, negotiations, treaties of peace, and other transactions relating to the public intercourse of nations. To this enumeration by Mr Wheaton of the sources from which information in disputed questions of international transactions can be drawn, a few words of explanation may be added. And, in the first place, it is clear that the subject-matter of International Law may, with great convenience, be arranged into two classes: that of the customary and that of the conventional rules of which it is composed. For whilst, to use Lord Stowell's words, "a great part of the Law of Nations stands on no other foundation than that of usage and practice," another and not unimportant part consists of the express contracts of nations with each other. 1 Le Louis, 2 Dodson, 249. 2 Marshall, On Insurance, 4th edit. p. 324. For tional the customary branch then of the law we are now ex- Interna amining we must seek for evidence in the decisions of Law. judges, in the confidential opinions of jurists given to Customary rules. their governments, and in the marine ordinances of particular states: whilst the evidence of the conventional Conventional branch is confined to treaties, whether of peace, alliance rules. or commerce. In the second place, with respect to the other evidence spoken of by Mr Wheaton, viz. the opinions of text writers, and the history of wars, nego- Text writiations, treaties of peace and other public transactions, ters, &c. it is clear that whilst the former are matter of opinion only, mere statements of private views, and therefore, except as speculative views, deprived of authority, though as speculations often very valuable; the latter are extremely useful as shewing the state of parties, the current of public opinion, and the mode of discussing and settling grave and perplexing questions at the particular times. recorded. From this consideration of the evidence we proceed to remark upon the elements of this law, and the relationship of what is called Natural to International Law. The ele ments. Interna Their re lative The elements of which this law is composed are:First', those rules of international conduct which are framed in accordance with the Divine or Natural Law, tional and which are often known as international morality; morality. and secondly, those rules that are dictated by public opinion and established by consent and usage, forming the positive law of nations and known as International Law proper. That the latter set of rules is the most useful and practical part of the law we are enquiring value. into there can be no doubt; yet it would be improper to separate from it its moral branch and not to uphold its importance, and to remember that the happiness of mankind demands the recognition of national quite as much as it does of individual morality. At the same time, to assert that this law as a system is identical with the law of nature, or that it is founded upon a primary divine law, is as absurd as to hold with Hobbes that organized nations assume the personal characters of individuals, and that the moral rules by which both ought to be governed are the same. These two branches then form together a 1 Ed. Rev. Vol. LXXVII. 2 De Cive, Imperium, c. XIV. § 4. |