Ompteda and
Kamptz.

a useful compendium of diplomatic history for the period which it embraces.

With this I conclude my notice of previous works connected with the Law of Nations, in which I have endeavoured to avoid being incomplete from too scanty an account, at the same time that I have wished to avoid a tedious minuteness. I believe that I have not omitted the mention of any of the great jurists whose opinions are referred to as authorities on the science under consideration, and of whom Chancellor Kent remarks, that "no civilized nation, that does not arrogantly set all ordinary law and justice at defiance, will venture to disregard the uniform sense of the established writers on international law." (1) I might easily have made my catalogue much longer, and many other works will be mentioned in the sequel, when discussing topics to which they refer. For a more detailed account of writers on the Law of Nations, I would recommend the work of Ompteda, entitled Litteratur des Völker-Rechts, (2) to which a volume in continuation was added by Kamptz in 1817. These works contain catalogues, arranged in several different ways, of works on the law of nations, and I found in them mention of English works which I had never heard of in our own country. (3) It is a curious contrast that is presented by these three volumes of critical catalogues of foreign works, on a science on which we have not a single systematic treatise by an English writer.

BOOK II.

OF THE SOURCES OF THE LAW OF NATIONS.

CHAPTER I.

OF THE LAW OF NATURE.

THE obligations on which international law is based, have been variously classified by different writers. By some they have been divided into the " necessary" and the "voluntary;" by others, into the "absolute" and the "arbitrary;" by others again, into the "primary" and the "secondary," and this "secondary" has been subdivided into the "customary" and the "conventional." Besides these, and other similar divisions, there is the classification which will here be employed, of the "natural" and the "positive" Law of Nations. All these divisions are founded on the same principle, of considering separately the national obligations which result from the divine law, and those which are of human institution, whether resulting from direct treaty, or arising from the tacit consent of nations.

As men, before they become members of civil society, The law of are in a state of nature, so independent nations, acknow- nature. ledging no common superior, are in a state of nature with regard to each other. "But, though this be a state of liberty, yet it is not a state of license.

57

Law of nature identical with

the will of God.

Utility.

The state of nature has a law of nature to govern it.” (1) In the words of Hooker, "Law rational, which men commonly call the law of nature, meaning thereby the law which human nature knoweth itself in reason universally bound unto, which also for that cause may be termed most fitly the law of reason; this law, I say, comprehendeth all those things which men, by the light of their natural understanding, evidently know, or at leastwise may know, to be beseeming or unbeseeming, virtuous or vicious, good or evil for them to do." (2) "Itaque," says Heineccius, "jus naturale est complexio legum, ab ipso Deo immortali generi humano per rectam rationem promulgatarum. Si vero illud, tanquam scientiam considerare malis, jurisprudentia illa naturalis erit habitus practicus voluntatem supremi legislatoris ex rectâ ratione cognoscendi, adplicandique quibusvis specisbus obvenientibus. Quæ, quia in jure, a Deo immortali profecto, enarrando adplicandoque versatur, recte etiam jurisprudentia Divina dici potest." (3)

The law of nature, by the obligations of which states are bound, being identical with the will of God, it is necessary to ascertain that will, which is done either by consulting direct revelation, where that is declaratory, or by the application of human reason where revelation is silent.

Every thing around us proves that God designed the happiness of his creatures. It is the will of God that mankind should be happy. To ascertain the will of God regarding any action, we have therefore to consider the tendency of that action to promote or diminish human happiness. The right application of this principle,

(1) Locke on Civil Government, book 11. ch. 11. s. 6.

(2) Ecclesiastical Polity, I. 8,

p. 83, ed. 1676.

(3) Elementa juris naturæ et Gentium, lib. I. c. I. s. 12.

commonly known as the principle of utility, is identical with the law of nature, the laws prescribed by human nature being obviously the laws tending to human happiness.

not new, but

The principle of utility is not a new one; it has been The principle called "as old as philosophy;" it is only the application is application of this principle that is new. Vattel was directed by new. some vague sense of utility, when he said, that "the first general law that we discover in the very object of the society of nations, is, that each individual nation is bound to contribute every thing in her power to the happiness and perfection of all the others." (1) And Montesquieu, in his valuable attempt to teach politics by induction, directly states the principle of utility. "The law of nations is naturally founded on this principle, that different nations ought in times of peace to do one another all the good they can, and in time of war as little injury as possible, without prejudicing their real interests." (2) But although this principle was known, and may indeed be said to be self-evident, yet its application in moral discussions is of comparatively recent introduction. The bringing this principle into general circulation is due to the writings of Bentham, and constitutes his real claim to be regarded as an improver of the science of morals. Bentham's classifications may be regarded as unnecessary, and his works may, and probably will, fall into disuse; but the benefit he conferred on moral science should never be forgotten. He was the propagator of a doctrine of which he expressly disclaims being the originator; but it is to him that we owe the common use of the most correct, and readiest, test of moral action. I am no great admirer of Mr. Bentham's writings. When a student first becomes acquainted with them, their perusal will generally be a most irksome task;

(1) Prel, s. 13,

(2) Esprit des Lois, liv. 1. ch. 3.

The principle of utility improperly called dangerous.

their method may even seem ludicrous, and their produc-
tion at all, useless. I do not even think that Mr. Ben-
tham always had a correct notion of the right application
of his own theory, but, in his own quaint expression,
"new instruments are seldom handled at first with per-
fect ease." It is in going back to the writings of the
elder moralists that we perceive, in the full force of con-
trast, the value of the principle now in common use in
moral discussions. Let the student observe how little
was effected by the huge erudition of Suarez or of Selden;
let him see how the union of the greatest learning and
the highest motives failed to rescue Grotius from false
conclusions; let him feel how cumbersome is the machi-
nery of Pufendorf; and how, even the advanced philosophy
of Heineccius languishes under a defective method; and
let him compare with these, the application of the doc-
trine of utility, as enunciated by Paley, or in the recent
work of Mr. Austin, and he will understand what obliga-
tion was conferred by Bentham in the introduction of
utility as the habitual test of moral action. Had this
principle been understood by Wolf, he would never
have deemed it allowable in war to have recourse to the
useless cruelty of poisoned weapons; nor could Grotius,
had he been conversant with this principle, have admitted
the right of slaughtering women and children. Both
writers would have seen that war is an evil, recourse to
which can only be justified by the avoidance of greater
evils; that the infliction of no greater evil was justifiable
than was imperatively called for by the circumstances of
the case; and that any unnecessary cruelty whatever was
a direct violation of the law of nature.

The principle of utility has often been called dangerous. This is not true with regard to the principle itself, but it is thus far true, that the misapplication of the principle is dangerous, and that the principle is rather liable to be misapplied. The besetting fallacy in arguments grounded