ELEMENTS OF

INTERNATIONAL LAW.

ᏢᎪᎡ Ꭲ FIRST.

DEFINITION, SOURCES, AND SUBJECTS OF
INTERNATIONAL LAW.

CHAPTER I.

DEFINITION AND SOURCES OF INTERNATIONAL LAW.

THERE is no legislative or judicial authority, recognised by all nations, which determines the law that regulates the reciprocal relations of States. The origin of this law must be sought in the principles of justice, applicable to those relations. While in every civil society or State there is always a legislative power which establishes, by express declaration, the civil law of that State, and a judicial power which interprets that law, and applies it to individual cases, in the great society of nations there is no legislative power, and consequently there are no express laws, except those which result from the conventions which States may make with one another. As nations acknowledge no superior, as they have not organised any common paramount authority, for the purpose of establishing by an express declaration their international law, and as they have not constituted any sort of Amphictyonic magistracy to interpret and apply that law, it is impossible. that there should be a code of international law illustrated by judicial interpretations.

§ 2. Natural

Law defined.

The inquiry must then be, what are the principles of justice which ought to regulate the mutual relations of nations, that is to say, from what authority is international law derived?

When the question is thus stated, every publicist will decide it according to his own views, and hence the fundamental differences which we remark in their writings.

The leading object of Grotius, and of his immediate disciples and successors, in the science of which he was the founder, seems to have been, First, to lay down those rules of justice which would be binding on men living in a social state, independently of any positive laws of human institution; or, as is commonly expressed, living together in a state of nature; and,

Secondly, To apply those rules under the name of Natural Law, to the mutual relations of separate communities living in a similar state with respect to each other.

With a view to the first of these objects, Grotius sets out in his work, on the rights of war and peace, (de jure belli ac pacis,) with refuting the doctrine of those ancient sophists who wholly denied the reality of moral distinctions, and that of some modern theologians, who asserted that these distinctions are created entirely by the arbitrary and revealed will of God, in the same manner as certain political writers (such as Hobbes) afterwards referred them to the positive institution of the civil magistrate. For this purpose,

Grotius labours to show that there is a law audible in the voice of conscience, enjoining some actions, and forbidding others, according to their respective suitableness or repugnance to the reasonable and sociable nature of man. "Natural law," says he, "is the dictate of right reason pronouncing that there is in some actions a moral obligation, and in other actions a moral deformity, arising from their respective suitableness or repugnance to the rational and social nature, and that, consequently, such actions are either forbidden or enjoined by God, the Author of nature. Actions which are the subject of this exertion of reason, are in themselves lawful or unlawful, and are, therefore, as such necessarily commanded or prohibited by God" (a).

(a) "Jus naturale est dictatum rectæ rationis, indicans actui alicui, ex ejus convenientiâ aut disconvenientiâ cum ipsâ naturâ rationali, inesse moralem

The term Natural Law is here evidently used for those rules of justice which ought to govern the conduct of men, as moral and accountable beings, living in a social state, independently of positive human institutions, (or, as is commonly expressed, living in a state of nature,) and which may more properly be called the law of God, or the divine law, being the rule of conduct prescribed by Him to his rational creatures, and revealed by the light of reason, or the Sacred Scriptures.

As independent communities acknowledge no common superior, they may be considered as living in a state of nature with respect to each other: and the obvious inference drawn by the disciples and successors of Grotius was, that the disputes arising among these independent communities must be determined by what they call the Law of Nature. This gave rise to a new and separate branch of the science, called the Law of Nations, Jus Gentium (b).

§ 4. Law of Nations dis

from Na

Grotius distinguished the law of nations from the natural law by the different nature of its origin and obligation, which he attributed to the general consent of nations. In the intro- tinguished duction to his great work, he says, "I have used in favour tural Law, of this law, the testimony of philosophers, historians, poets, by Grotius. and even of orators; not that they are indiscriminately to be relied on as impartial authority; since they often bend to the prejudices of their respective sects, the nature of their argument, or the interest of their cause; but because where many minds of different ages and countries concur in the same sentiment, it must be referred to some general cause. In the subject now in question, this cause must be either a just deduction from the principles of natural justice, or universal consent. The first discovers to us the natural law, the second the law of nations. In order to distinguish these two branches of the same science, we must consider, not merely the terms which authors have used to define them, (for they often confound the terms natural law and law of nations,) turpitudinem, aut necessitatem moralem, ac consequenter ab auctore naturæ, Deo, talem actum aut vetari aut præcipi.

"Actus de quibus tale extat dictatum, debiti sunt aut illiciti per se, atque ideo à Deo necessario præcepti aut vetiti intelliguntur." Grotius, de Jur. Bel. ac Pac. lib. i. cap. 1, § x. 1, 2.

(b) [With respect to the jus gentium as understood by the Romans, sce Maine's Ancient Law, ch. iii., p. 47.]