CHAPTER IV.

Law of nations as a whole

system.

OF THE LAW OF NATIONS AS DERIVED FROM THE

PRECEDING SOURCES.

THE law of nations being thus dependent on the law of nature, on custom, and on convention, bears some resemblance to the divisions of our own law, as comprised under the heads of equity, common law, and statute law. It cannot boast the exactness of our municipal code, which, notwithstanding its proverbial uncertainty, is better ascertained, from the number of cases decided, than the comparatively rare discussion of questions regarding the law of nations renders possible. Nor has it the advantage of a fixed tribunal to decide in doubtful cases; neither has it the advantage of the "sanction" which the authority of the sovereign gives to municipal law. Nor can it be denied that history records numerous instances, even in modern times, of law being disregarded, and of clear rights being flagrantly violated. But notwithstanding its deficiencies, and its occasional neglect, the law of nations, as derived from natural law, from custom, and from convention, is, as a fact, acknowledged as binding by the states of Europe and of North America. When differences occur between nations, reason is brought to bear to discover the right of the case, and the standard writers are appealed to, and usage is shown, from historical accounts of the previous practice of states; and the rule of conduct, as deduced from these sources, is acknowledged as the law

of nations. The occasional infringement of this law is no argument against the fact of its existence and acknowledgement: it is a contingency to which it is liable. from its very nature, being a rule to be observed by those who have no common superior to enforce its constant observance. As a fact, the law of nations is constantly appealed to; and has been usually obeyed: it has been recognised as a body of law for the guidance of nations in a great variety of state papers; it has been acknowledged as binding by an express act of the legislature of the United States; and is referred to as a known system in a treaty of the Turks. It has even been recognised at the very moment of its violation; and the sovereigns who have broken through its restraints have invariably acknowledged its existence, by the manner in which they have attempted to make their violence appear consistent with its institutions.

Plans for securing the observance of the law of nations; that of Leibnitz,

CHAPTER V.

OF THE PROBABILITY OF AN IMPROVED OBSERVANCE

OF INTERNATIONAL JUSTICE.

STILL it cannot be denied, that there is a want of certainty with regard to the law of nations as compared with the decisions of municipal law; and various plans have been suggested, by different authors, for the remedy of this defect; but all hitherto advanced have been unfit for practical application. Some reference has been already made to the plan of Leibnitz, who desired that the Pope and the Emperor, whom he represents as the spiritual and temporal heads of the Christian commonwealth, should have authority over the other potentates of Europe he proposed that some permanent council should be established by these two sovereigns, to act as a tribunal for the judgment of disputed cases of treaty, and other international questions, and to settle all contested points by peaceful adjustment. (1) But this scheme, even in the time of Leibnitz, could only have been congenial to the minds of those who were at once loyal Germans and devout Catholics; and, at the present day, its faultiness is hardly worth consideration, as it is rendered impracticable by the formal dissolution of the empire, and by the loss of all temporal authority by the Pope. Whatever might formerly have been the pretensions of the Pope and the Emperor, whose dignity Leibnitz greatly extols, they certainly never could claim as a

(1) Leibnitii Opera (1768) 1v. 330, 331.

right such jurisdiction over independent states, and the tribunal proposed would have been of too suspected a character to be the subject of voluntary recognition by the other European sovereigns.

During the love of discussing elementary principles, which the French revolution elicited, the Abbé Grégoire proposed to the National Convention, in April 1795, a series of declarations of the rights of states. His propositions partook of the general nature of such schemes at that period, they were dangerous when they ceased to be common-place. Thus as long as he confined himself to such remarks as, Art. 21, "Treaties between states are sacred and inviolable ;"-Art. 10, "Every nation is mistress of its own territory ;"-Art. 3. "A nation should act towards others as she desires that others should act towards her," he only asserted harmless truisms; but when he proceeded to declare, Art. 5, that "The individual interest of a nation is subordinate to the general interest of the human family," he fell into the most pernicious fallacy in political morality, that of discovering the standard of right in the present advantage of the numerical majority, a confusion that would annihilate the rights of small states, and justify the destruction of any nation by a confederacy of many nations. The Abbé Grégoire's scheme would have been liable to Burke's criticism on the Declaration of the Rights of Man, "that institute and digest of anarchy;" but it was not adopted even by the Convention, who would have found, in propositions that are to us stale truisms, that which was opposed to their system of tyrannizing under the name of liberty, and of conquering under the guise of fraternization. (1)

Gens, preface to the edition of

(1) See some good remarks on the Abbé Grégoire's plan in 1796. De Martens, Précis du droit des

Scheme of the

Abbé Grégoire.

Plan of Kant and of Mill.

The latter scheme considered.

I have already remarked that Kant proposed to remedy the want of an authoritative tribunal to decide questions on the law of nations, by the constitution of a

permanent States'-Congress," formed of delegates from the various states of Europe. A similar proposition was advanced by Mr. Mill, in his Essay on the Law of Nations, reprinted from the Encyclopædia Britannica. Mr. Mill proposed that delegates should be sent from different governments for the purpose of framing a code of the law of nations; and that, after the formation of such a code, there should be an "international tribunal," to take cognizance of all disputes between nations. This tribunal he would have composed of delegates from the different governments of "the more civilized and leading nations of the world;" and, as experience proves that "a numerous assembly of men cannot form a good judicatory," when any case came for decision, the delegates should "choose some one individual of their body upon whom the whole duty of judge should in that case devolve," the delegates being present during the proceedings. A court of judicature being thus established, if a nation against which any accusation was brought, refused to plead, or to submit to the tribunal, the inquiry should proceed notwithstanding; and "the fact of not appearing should itself be treated as an offence against the law of nations." Finally, "refractory nations" should be punished by the ceremonial being turned against them, or by individual subjects of these states being deprived of the power of suing in foreign courts except for the greater crimes. "The intention should never be entertained of supporting the decisions of the international tribunal by force of arms."

This scheme is so visionary, for many reasons, that nothing but the name of its author renders its mention necessary. With regard to the formation of a code, the "delegates" who are to be appointed for that purpose, must of course, decide all questions by a majority of