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is necessarily the law of all nations and of all times, since the Europeans and the Indians frequently differ from each other concerning the ideas which they have formed of international law, and even among us it may be changed by the lapse of time, of which there are numerous examples. The basis of international law is natural law, which has been modified according to times and local circumstances."I Montesquieu, in his Esprit des Lois, says, that "every nation has a law of nations — even the Iroquois, who eat their prisoners, have one. They send and receive ambassadors; they know the laws of war and peace; the evil is, that their law of nations is not founded upon true principles." 2
There is then, according to these writers, no universal law of nations, such as Cicero describes in his treatise De Republica, binding upon the whole human race — which all mankind in all ages and countries, ancient and modern, savage and civilized, Christian and Pagan, have recognized in tủeory or in practice, have professed to obey, or have in fact obeyed.
An eminent French writer on the science of which we propose to treat, has questioned the propriety of using the term droit des gens (law of nations) as applicable to those rules of conduct which obtain between independent societies of men. He asserts " that there can be no droit (right) where there is no loi (law); and there is no law where there is no superior : without law, obligations, properly so called, cannot exist; there is only a moral obligation resulting from natural reason ; such is the case between nation and nation. The word gens imitated from the Latin, does not signify in the French language either people or nations." 3
The same writer has made it the subject of serious reproach to the English language that it applies the term law to that system of rules which governs, or ought to govern, the conduct of nations in their mutual intercourse. His argument is, that law is a rule of conduct, deriving its obligation from sovereign authority, and
1 Leibnitz, Cod. Jur. Gent. diplom. Préf. 2 Esprit des Lois, liv. i. ch. 3.
3 Rayneval, Institutions du droit de la nature et des gens, Note 10 du 1r liv. p. vii.
binding only on those persons who are subject to that authority ;- that nations, being independent of each other, acknowledge no common sovereign from whom they can receive the law;that all the relative duties between nations result from right and wrong, from convention and usage, to neither of which can the term law be properly applied ;— that this system of rules had been called by the Roman lawyers the jus gentium, and in all the lan. guages of modern Europe, except the English language, the right of nations, or the laws of war and peace.
That very distinguished legal reformer, Jeremy Bentham, had previously expressed the same doubt how far the rules of conduct which obtain between nations can with strict propriety be called laws. And one of his disciples has justly observed, that “laws, properly so called, are commands proceeding from a determinate rational being, or a determinate body of rational beings, to which is annexed an eventual evil as the sanction. Such is the law of nature, more properly called the law of God, or the divine law; and such are political human laws, prescribed by political superiors to persons in a state of subjection to their authority. But laws imposed by general opinion are styled laws by an analogical extension of the term. Such are the laws of honor imposed by opinions current in the fashionable world, and enforced by appropriate sanction. Such, also, are the laws which regulate the conduct of independent political societies in their mutual relations, and which are called the law of nations, or international law. This law obtaining between nations is not positive law; for every positive law is prescribed by a given superior or sovereign to a person or persons in a state of subjection to its author. The rule concerning the conduct of sovereign States, considered as related to each other, is termed law by its analogy to positive law, being imposed upon nations or sovereigns, not by the positive command of a superior authority, but by opinions generally current among nations. The duties which it imposes are enforced by moral sanctions : by fear on the part of nations, or by fear on the part of sovereigns, of provoking
i Droit des gens, Fr. Dritto delli genti, Ital. Direito das Gentes, Portug. Völkerrecht, Germ. Volkenregt, Dutch. Folkeret, Dan. Folkrätt, Swed.
2 Bentham, Morals and Legislation, vol. ii. p. 256. Ed. 1823.
general hostility, and incurring its probable evils, in case they should violate maxims generally received and respected.” 1
This law has commonly been called the jus gentium in the Latin, droit des gens in the French, and law of nations in the English language. It was more accurately termed the jus inter gentes, the law between or among nations, for the first time, by Dr. Zouch, an English civilian and writer on the science, distinguished in the celebrated controversy between the civil and common lawyers during the reign of Charles II., as to the extent of the Admiralty jurisdiction. He introduced this term as more appropriate to express the real scope and object of this law. An equivalent term in the French language was subsequently proposed by Chancellor D'Aguesseau, as better adapted to express the idea properly annexed to that system of jurisprudence commonly called le droit des gens, but which, according to him, ought properly to be termed le droit entre les gens.3 The term international law has been since proposed by Mr. Bentham as well adapted to express in our language, “in a more significant manner that branch of jurisprudence, which commonly goes under the name of law of nations, a denomination so uncharacteristic, that were it not for the force of custom, it would rather seem to refer to internal or municipal jurisprudence.” 4 The terms international law and droit international have now taken root in the English and French languages, and are constantly used in all discussions connected with the science, and we cannot agree with Heffter in proscribing them. (a)
1 Austin, Province of Jurisprudence determined, pp. 147, 207.
(a) [M. Fælix, who in other respects commends most highly this work, objects to the application of the term "international law," as it is used by Mr. Wheaton, to the principles which govern the reciprocal relations of States, established by usage or treaties, and which, as he contends, are only properly designated as the “ law of nations," droit des gens. He appropriates international law, to indicate the collection of principles, which serve to determine the cases of conflict between the private or internal laws of different States, that is to say, to the branch of jurisprudence which constitutes the subject of Judge Story's Conflict of Laws, and of his own Treatise. “On appelle droit international l'ensemble des régles reconnues comme raison de décider des conflits entre le droit privé des diverses nations;
Opinion of According to Savigny, “ there may exist between Savigny. different nations the same community of ideas which contributes to form the positive unwritten law (das positive Recht) of a particular nation. This community of ideas, founded upon a common origin and religious faith, constitutes international law as we see it existing among the Christian States of Europe, a law which was not unknown to the people of antiquity, and which we find among the Romans under the name of jus feciale. International law may therefore be considered as a positive law, but as an imperfect positive law, (eine unvollendete Rechtsbildung,) both on account of the indeterminateness of its precepts, and because it lacks that solid basis on which rests the positive law of every particular nation, the political power of the State and a judicial authority competent to enforce the law. The progress of civilization, founded on Christianity, has gradually conducted us to observe a law analogous to this in our intercourse with all the nations of the globe, whatever may be their religious faith, and without reciprocity on their
It may be remarked, in confirmation of this view, that the more recent intercourse between the Christian nations of Europe and America and the Mohammedan and Pagan nations of Asia and Africa indicates a disposition, on the part of the latter, to renounce their peculiar international usages and adopt those of Christendom. The rights of legation have been recognized by, and reciprocally extended to, Turkey, Persia, Egypt, and the
en d'autres termes, le droit international se compose des régles relatives à l'application des lois civiles ou criminelles d'un état dans le territoire d'un état étranger.” Fælix, Du conflit des lois de differentes nations on du droit international, chap. 1, § 1, et note 1. Polsen, a late English writer, objects to the title International Law, as used in this treatise, as an unnecessary change from the former nomenclature. Polsen, Principles of the Law of Nations, p.1. On the other hand, Mr. Manning says, that “the phrase international law is now in common currency, a definite and expressive term, of which Mr. Bentham claims the fatherhood, and which is almost the only term of his new political nomenclature that has passed into general circulation.” Manning's Commentaries of the Law of Nations, p. 2. The term is, also, adopted by Hautefeuille, the author of one of the ablest treatises on the science that has appeared in France, and who thus defines it: “Le droit international est celui qui règle et régit les relations des peuples entre eux.” Hautefeuille, Droits des nations neutres, tom. 1, p. 3.]
i Savigny, System des heutigen Römischen Rechts, 1 B'd, 1 Buch, Kap.ü. $ 11.
States of Barbary. The independence and integrity of the Ottoman Empire have been long regarded as forming essential elements in the European balance of power, and, as such, have recently become the objects of conventional stipulations between the Christian States of Europe and that Empire, which may be considered as bringing it within the pale of the public law of the former.) (6)
1 Wheaton's Hist. Law of Nations, p. 583.
() [It was formerly held that in the intercourse between Christian and Mohammedan nations, the latter were entitled to a very relaxed application of the principles established by the States of Christendom to regulate their mutual relations. All recent negotiations, however, between the Sultan and Christian States have been conducted with reference to that law of nations, which is recognized by the civilized powers of Europe and America, and since 1826 reforms have been made in the internal government of Turkey, which have been supposed to afford to foreign nations a guarantee for her conventional engagements. Though the Turkish Empire was not represented at the Congress of Vienna, or at any subsequent congress convened for the purpose of considering the general interests of Europe, the Christian Powers have, for upwards of two centuries, had treaties of commerce with the Porte, and since 1791 they have repeatedly interposed to effect peace between Turkey and one of their number, especially Russia. In 1827, France, Great Britain, and Russia, joined in a treaty to compel the Sublime Porte to recognize the independence of Greece, while in 1840 the Western Powers interfered as well to save the Ottoman Empire from being dismembered by the aggressions of the Pacha of Egypt, as from surrendering its independence to the exclusive protectorate of Russia. At this time, (July, 1854,) a contest is going on in which England and France, with the avowed acquiescence of Austria and Prussia, are united, professedly, for the purpose of maintaining Turkey as an independent State, essential, as they allege, to the political equilibrium of Europe, against the Emperor of Russia, who not only asserts his claim, sanctioned by all recent treaties, to a protectorate in Moldavia, Wallachia, and Servia, which provinces enjoy special privileges, but contends for the right of intervention, as based on repeated conventions, going back to the treaty of Kutschouc-Kaynardgi, of 1774, (Martens — Recueil des Traités, t. ii. p. 297,) in behalf of his. co-religionists of the Greek Church generally, constituting three fourths of the European subjects of the Porte. The influence that Austria, France, and England, as well as Russia, have at different times exercised, as respects even the strictly internal relations of the Sultan to his subjects, apd in matters of municipal administration, as well as the peculiar provisions, by which jurisdiction is still recognized in the ministers and consuls of the Christian Powers over their citizens and subjects in the countries of the East, including the protection accorded by them to Franks, though not of their own nationality, renders it difficult to apply to the questions, which arise between Turkey and other Powers, the rules derived from the international relations of those States, which reject all interference from abroad in affairs of domestic cognizance.)