COMMENTARIES

ON

THE LAW
LAW OF NATIONS.

BOOK I.

DEFINITION AND HISTORY OF THE LAW OF NATIONS.

CHAPTER I.

DEFINITION OF THE TERM AS HERE EMPLOYED.

THE want of sufficient exactness which attaches to much of the Law of Nations, commences with the very name of the science, which is employed by different authors with very different limits of signification. This is in a great measure occasioned by a confusion of the words Jus and Law, which are not exactly synonymous. Pufendorf complains of this ambiguity, (1) the word Jus having the double sense of Law, and of Right, or moral obligation; and the term Jus Gentium, which is usually translated Law of Nations, would perhaps be more correctly rendered Rights of Nations. In this sense it corresponds with the French Droit Public, which includes the obligations existing between a state and its subjects, and also between different independent states. (2) Sir James Mackintosh used the term in this sense when he included in his lectures a discussion of the whole social duties, treating of man considered both as an individual moral agent and as a member of a state, of forms of

(1) De Jure Nat. et Gent. lib. I. c. 1, s. 20.

(2) Klüber, Droit des Gens, ch. 1, s. 2.

Inexactness of

the term "law

of nations."

B

Limitation of the term as

employed in this treatise.

government, of civil and criminal laws, as well as of
those relations between different states, which made only
the fifth division of his course, and which he speaks
of as "the Law of Nations strictly and properly so
called." (1) The term Droit des Gens has been occa-
sionally, but very rarely, employed in this extended
sense, as by Dumont, who speaks of it as "le droit
respectif des peuples les uns envers les autres, et aussi
en eux-mêmes." (2) In a more limited sense, which is
that usually understood, the term Law of Nations ex-
presses those rules which govern the conduct of states
in their relations with each other. It is, in the words
of Grotius," jus illud quod inter populos plures aut
populorum rectores intercedit, sive ab ipsâ naturâ pro-
fectum, aut divinis constitutum legibus, sive moribus et
pacto tacito introductum." (3) It is in this signification
that the term Droit des Gens is usually employed by
the French, (4) and the term Völker-Recht by the Ger-
mans. (5) Zouch, dissatisfied with the want of precision
in the term Jus Gentium, entitled one of his Treatises
"De Judicio inter Gentes," and another "Juris et
Judicii Fecialis sive juris inter Gentes, et Questionum
ab eodem, explicatio." (6) The same term "jus inter
Gentes" had before been, incidentally, used by Selden. (7)
And the phrase "international law," is now in common
currency, a definite and expressive term of which Mr.
Bentham claims the fatherhood, (8) and which is almost
the only term of his new political nomenclature that
has passed into general circulation.

It is in this limited sense, namely, as comprising the rules controlling the conduct of independent states in

(1) Discourse, p. 81.
(2) Corps Dipl. Preface 1.
(3) De Jure, Prolegomena, I.
(4) De Martens Précis, Introd.
(5) Ompteda Litteratur des
Völker-Rechts, I. p. 5.

(6) Hague, 1659.

(7) Selden de Dominio Maris, Pref. p. 1184.

(8) Bentham on Morals and Legislation, I., 260–262.

their relations with each other, that the term "Law of Nations" is employed in the following treatise: it is used as convertible with the term "International Law;" and is retained in preference of the exclusive employment of the latter phrase, because more completely domesticated in our language, of more frequent occurrence in the older works in which this subject is mentioned, and not liable to any charge of uncertainty when its extent of meaning has been once defined.

As the obligations of the fundamental principles of the law of nations arise from the law of nature, it has been usual, with many authors, to treat of the law of nature and the law of nations in the same work, and deducing the duties, both of individuals and of states, from one common origin, to pursue these deductions into their different ramifications, both of social and of national obligation. It has been above remarked, that such was the plan pursued by Sir James Mackintosh, and it is that adopted by Vattel, and by most other writers. This plan seems, however, to me to lie open to many objections, and I cannot but think it one of the principal reasons why the study of the law of nations has been so little followed in this country. An inquirer, wishing to learn any thing upon this topic, is presented with a vast quantity of extraneous matter, of the very description which is least palatable to the political taste of this country, and is embarrassed and disgusted by a string of general propositions, on points which are never controverted in the present state of political knowledge. Thus in Vattel's work there are a variety of chapters regarding such rights and duties as "the cultivation of the soil," "" commerce," "the care of the public ways," "money," "piety and religion," "justice and polity," &c., which, although they may be interesting to some readers, are for the most part tedious common-places to politicians in this country, and are quite unconnected with the law of nations as regulating the intercourse of states.

It

An objection by Mr. Austin

considered.

seems to me to be much better to have separate treatises
dedicated to the different subjects of the duties of men
considered in their various relations as individual moral
agents, and as citizens of a state; and to the duties of
states considered in their intercourse with other inde-
pendent states. An additional reason exists in this
country for such a separation of treatises; the former
division, regarding man in his individual and social
capacity, having been already occupied by a writer who
is not likely to be supplanted by a better; I mean by
Paley, whose work on Moral Philosophy I regard with
the greatest respect, mingled with a sense of gratitude
from what I remember of its influence; I object to some
of his positions, and I think him inaccurate in some
definitions, and unsound in some arguments, but I look
upon his work as a whole with constant veneration, and
I think it a book which may be improved, but which
will, probably, never be superseded.

An objection to the term law, as applied to the rules which control the relations of states with each other, has been made by Mr. Austin, in his valuable work entitled The Province of Jurisprudence determined. Mr. Austin, in his definition of laws "properly so called," includes the necessity of a "sanction" to enforce commands set by a determinate superior. Rules destitute of this sanction, he says, are only called laws by analogy. "Laws or rules of this species [set by general opinion] which are imposed upon nations or sovereigns by opinions current amongst nations, are usually styled the law of nations, or international law. Now a law set or imposed by general opinion is a law improperly so called ;” (1) and the law of nations is accordingly included by Mr. Austin in the same category with the laws of honour and the laws of fashion. To this objection to the term "law of nations" it might be answered, that Mr. Austin himself allows that "divine laws" are "laws or rules

(1) p. 147.

properly so called;" (1) now "divine laws" are synonymous and identical with the laws of nature, upon which the law of nations is based. But my objection is that the word law, which has, in our language, so long been employed in a much wider sense, should, by a single writer, be declared to be only "properly" used with this restricted meaning. I believe that considerable latitude should be allowed to an author in giving what extent he pleases to the terms he employs, provided he adheres to his definitions; but I think that it would be better, in a word so commonly used with a different meaning, to have affixed some explanatory adjective to that class of laws which Mr. Austin refers to, instead of declaring that laws of this class are the only laws that can be properly so called. And this position I find strengthened by a passage in Hooker, a sound authority for an English word, who seems to have anticipated the very objection made by Mr. Austin. They, who are accustomed thus to speak, apply the name of law unto that only rule of working which supreme authority imposeth; whereas we, somewhat enlarging the sense thereof, term any kind. of rule or canon whereby actions are framed, a law." (2)

66

term.

It is in this sense, of the rule "whereby actions are General curframed" by independent states in their relations with rency of the each other, that the term "law of nations" is here employed. In this sense the term has been constantly used in the writings of jurists, and in the diplomacy of governments; as, for instance, when Congress, during the American war of Independence, professed adherence to the law of nations "according to the general usages of Europe," (3) and in innumerable other instances wherein the "law of nations," whatever that may be, is referred to as existing, and recognised as binding, in state-papers issued by every European government.

(1) Id. p. 31.

(2) Eccles. Pol. I. 3, p. 72, (ed. 1676).

(3) Kent's Commentaries on American Law, I., 1.