from positive institution." He had previously said, "As the laws of each particular State are designed to promote its advantage, the consent of all, or at least the greater number of States, may have produced certain laws between them. And, in fact, it appears that such laws have been established, tending to promote the utility, not of any particular State, but of the great body of these communities. This is what is termed the Law of Nations, when it is distinguished from Natural Law."1

All the reasonings of Grotius rest on the distinction, which he makes between the natural and the positive or voluntary Law of Nations. He derives the first element of the Law of Nations from a supposed condition of society, where men live together in what has been called a state of nature. That natural society has no other superior but God, no other code than the divine law engraved in the heart of man, and announced by the voice of conscience. Nations living together in such a state of mutual independence must necessarily be governed by this same law. Grotius, in demonstrating the accuracy of his somewhat obscure definition of Natural Law, has given proof of a vast erudition, as well as put us in possession of all the sources of his knowledge. He then bases the positive or voluntary Law of Nations on the consent of all nations, or of the greater part of them, to observe certain rules of conduct in their reciprocal relations. He has

1 "Usus sum etiam ad juris hujus probationem testimoniis philosophorum, historicorum, poëtarum, postremò et oratorum; non quod illis indiscretè credendum sit; solent enim sectæ, argumento, causæ servire: sed quòd ubi multi diversis temporibus ac locis idem pro certo affirmant, id ad causam universalem referri debeat; quæ in nostris quæstionibus alia esse non potest quàm aut recta illatio ex naturæ principiis procedens, aut communis aliquis consensus. Illa jus naturæ indicat, hic jus gentium: quorum discrimen non quidem ex ipsis testimoniis, (passim enim scriptores voce juris naturæ, et gentium permiscent,) sed ex materiæ qualitate intelligendum est. Quod enim ex certis principiis certâ argumentatione deduci non potest, et tamen ubique observatum apparet, sequitur ut ex voluntate liberâ ortum habeat." "Sed sicut cujusque civitatis jura utilitatem suæ civitatis respiciunt, ita inter civitates aut omnes aut plerasque ex consensu jura quædam nasci potuerunt; et nata apparent, quæ utilitatem respicerent non cœtuum singulorum sed magnæ illius universitatis. Et hoc jus est quod gentium dicitur, quoties id nomen à jure naturali distinguimus." Grotius, de Jur. Bel. ac Pac. Prolegom. 40, 17.

*

endeavored to demonstrate the existence of these rules by invoking the same authorities, as in the case of his definition of Natural Law. We thus see on what fictions or hypotheses Grotius has founded the whole Law of Nations. But it is evident that his supposed state of nature has never existed. As to the general consent of nations of which he speaks, it can at most be considered a tacit consent, like the jus non scriptum quod consensus facit of the Roman jurisconsults. This consent can only be established by the disposition, more or less uniform, of nations to observe among themselves the rules of international justice, recognized by the publicists. Grotius would, undoubtedly, have done better had he sought the origin of the Natural Law of Nations in the principle of utility, vaguely indicated by Leibnitz,1 but clearly expressed and adopted by Cumberland,2 and admitted by almost all subsequent writers, as the test of international morality. But in the time that Grotius wrote, this principle which has so greatly contributed to dispel the mist with which the foundations of the science of International Law were obscured, was but very little understood. The principles and details of international morality, as distinguished from international law, are to be obtained not by applying to nations, the rules which ought to govern the conduct of individuals, but by ascertaining what are the rules of international conduct which, on the whole, best promote the general happiness of mankind. The means of this inquiry are observation and meditation; the one furnishing us with facts, the other enabling us to discover the connection of these facts as causes and effects, and to predict the results which will follow, whenever similar causes are again put into operation.1

1 Et jus quidem merum sive strictum nascitur ex principio servandæ pacis; æquitas sive caritas ad majus aliquid contendit, ut dum quisque alteri prodest quantum potest, felicitatem suam augeat in aliena; et ut verbo dicam, jus strictum miseriam vitat, jus superius ad felicitatem tendit, sed qualis in hanc mortalitatem cadit. Leibnitz, de Usu Actorum Publicorum, § 13.

2 Lex naturæ est propositio naturaliter cognita, actiones indicans effectrices communis boni. Cumberland, de Legibus Naturæ, cap. v. § 1.

3 Bentham's Principles of International Law. Works, Part VIII. p. 587. Edit. Bowring.

4 Senior, Edinburgh Review, No. 156, p. 310, 321.

§ 5. Law

Neither Hobbes nor Puffendorf entertains the same of Nature opinion as Grotius upon the origin and obligatory force

and Law of

Nations as of the positive Law of Nations. The former, in his

serted to

be identi- work, De Cive, says, "The natural law may be divided

cal, by

Hobbes and into the natural law of men, and the natural law of Puffendorf. States, commonly called the Law of Nations. The precepts of both are the same; but since States, when they are once instituted, assume the personal qualities of individual men, that law, which when speaking of individual men we call the Law of Nature, is called the Law of Nations when applied to whole States, nations, or people." To this opinion Puffendorf implicitly subscribes, declaring that "there is no other voluntary or positive law of nations properly invested with a true and legal force, and binding as the command of a superior power." 2

1

After thus denying that there is any positive or voluntary law of nations founded on the consent of nations, and distinguished from the natural law of nations, Puffendorf proceeds to qualify this opinion by admitting that the usages and comity of civilized nations have introduced certain rules, for mitigating the exercise of hostilities between them; that these rules are founded upon a general tacit consent; and that their obligation ceases by the express declaration of any party, engaged in a just war, that it will no longer be bound by them. There can be no doubt that any belligerent nation which chooses to withdraw itself from the obligation of the Law of Nations, in respect to the manner of carrying on war against another State, may do so at the risk of incurring the penalty of vindictive retaliation on the part of other nations, and of putting itself in general hostility with the civilized world. As a celebrated English civilian and magistrate (Lord Stowell) has well observed, "a great part of the law of nations stands upon the usage and practice of nations. It is introduced,

1 Præcepta utriusque eadem sunt; sed quia civitates semel institutæ inducunt proprietates hominum personales, lex quam, loquentes de hominum singulorum officio, naturalem dicimus, applicata totis civitatibus, nationibus sive gentibus, vocatur jus gentium. Hobbes, De Cive, cap. xiv. § 4.

2 Cui sententiæ et nos plane subscribimus. Nec præterea aliud jus gentium, voluntarium seu positivum dari arbitramus, quod quidem legis propriæ dictæ vim habeat, quæ gentes tamquam sa superiore profecta stringat. Puffendorf, De Jure Naturæ et Gentium, lib. ii. cap. 3, § 23.

indeed, by general principles, but it travels with those general principles only to a certain extent; and if it stops there, you are not at liberty to go further, and say that mere general speculations would bear you out in a further progress; thus, for instance, on mere general principles, it is lawful to destroy your enemy; and mere general principles make no great difference as to the manner by which this is to be effected; but the conventional law of mankind, which is evidenced in their practice, does make a distinction, and allows some, and prohibits other modes of destruction; and a belligerent is bound to confine himself to those modes which the common practice of mankind has employed, and to relinquish those which the same practice has not brought within the ordinary exercise of war, however sanctioned by its principles and purposes." 1

The same remark may be made as to what Puffendorf says respecting the privileges of ambassadors, which Grotius supposes to depend upon the voluntary law of nations; whilst Puffendorf says they depend, either upon natural law which gives to public ministers a sacred and inviolable character, or upon tacit consent, as evidenced in the usage of nations, conferring upon them certain privileges which may be withheld at the pleasure of the State where they reside. The distinction here made between those privileges of ambassadors, which depend upon natural law, and those which depend upon custom and usage, is wholly groundless; since both one and the other may be disregarded by any State which chooses to incur the risk of retaliation or hostility, these being the only sanctions by which the duties of international law can be enforced.

Still it is not the less true that the law of nations, founded upon usage, considers an ambassador, duly received in another State, as exempt from the local jurisdiction by the consent of that State, which consent cannot be withdrawn without incurring the risk of retaliation, or of provoking hostilities on the part of the sovereign by whom he is delegated. The same thing may be affirmed of all the usages which constitute the Law of Nations. They may be disregarded by those who choose to declare themselves absolved from the obligation of that law, and

1 Robinson's Admiralty Rep. vol. i. p. 140.

to incur the risk of retaliation from the party specially injured by its violation, or of the general hostility of mankind.1

§ 6. Law of Nations de

reason and

usage.

Bynkershoek, (who wrote after Puffendorf, and before rived from Wolf and Vattel,) derives the law of nations from reason and usage (ex ratione et usu,) and founds usage on the evidence of treaties and ordinances (pacta et edicta,) with the comparison of examples frequently recurring. In treating of the rights of neutral navigation in time of war, he says, "Reason commands me to be equally friendly to two of my friends who are enemies to each other; and hence it follows that I am not to prefer either in war. Usage is shown by the constant, and, as it were, perpetual custom which sovereigns have observed of making treaties and ordinances upon this subject, for they have often made such regulations by treaties to be carried into effect in case of war, and by laws enacted after the commencement of hostilities. I have said by, as it were, a perpetual custom; because one, or perhaps two treaties, which vary from the general usage, do not alter the law of nations." 2

In treating of the question as to the competent judicature in cases affecting ambassadors, he says, "The ancient jurisconsults assert, that the law of nations is that which is observed in accordance with the light of reason, between nations, if not among all, at least certainly among the greater part, and those the most civilized. According to my opinion, we may safely follow this definition, which establishes two distinct bases of this law; namely, reason and custom. But in whatever manner we may define the law of nations, and however we may argue upon it, we must come at last to this conclusion, that what reason dictates to nations, and what nations observe between each other,

1 Wheaton's History of the Law of Nations, p. 96.

2 "Jus Gentium commune in hanc rem non aliunde licet discere, quàm ex ratione et usu. Ratio jubet ut duobus, invicem hostibus, sed mihi amicis, æque amicus sim; et inde efficitur, ne in causâ belli alterum alteri præferam. Usus intelligitur ex perpetuâ quodammodo paciscendi edicendique consuetudine; pactis enim Principes sæpe id egerunt in casu belli, sæpe etiam edictis contra quoscanque, flagrante jam bello. Dixi, ex perpetuâ quodammodo consuetudine, quia unum fortè alterumve pactum, quod a consuetudine recedit, Jus Gentium non mutat." Bynkershoek, Quæst. Jur. Pub. lib. i. cap. 10.