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To preserve liberty, small States best.

$5.Importance conceived. Resolved to preserve to the people their God-given liberty; tions to U. S. knowing from all experience of the world, and from their own common sense, that for a free people a government over a moderate area was desirable, if not absolutely necessary; and at the same time knowing that To obtain these States would individually have little power and influence in the world, and perhaps become the prey of European despots, our fathers league. united these States by a league of closer alliance than any of which we First attempt have knowledge. That proving ineffectual to preserve the Union so

strength, unite them by

fails.

Improvements in second.

Rights de

ternational

Law.

dearly cherished, they made another closer still. It contains some wellknown provisions, and some peculiar to itself, all of which have become to these Sovereignties their instituted Civil Law; but for the bulk of their code they are dependent on the Law of Nations. Therefore may it be pendent on In- affirmed, without fear of contradiction, that no Peoples have existed since the shining days of Grecian Confederacies, that were so deeply concerned as are these States in jus gentium; nor had even they, nor the Hebrews, of tliese States by any means an equal interest with this much greater Union of over thirty millions of men; yet no people seem to be more ignorant of it; Our ignorance by none have its important and simple teachings been more mystified and confused.

Deep interest

in that Law.

of it.

Kent's advice

to have a new text book.

These young

Most heartily do I subscribe to the opinion of Chancellor Kent, that a new work on International Law is required, which shall embody the few modern improvements that have been made, and, what is more impor tant, cut away the excrescences, monstrosities, which American teachers have added. These young Peoples must remember the sage advice of nations to be their great jurist, that "in cases where the principal jurists agree, the presumption will be very great in favor of the solidity of their maxims; and 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."

pupils, not teachers.

Who are the teachers.

What would

sumption in

"The principal jurists," I am inclined to think, will in this case be allowed to be Grotius, Cumberland, Pufendorf, Montesquieu, Vattel, &c. These "established writers," it will be found, "agree" upon "their be a gross as- maxims;" and it would indeed appear to be a gross assumption for us, in the infancy of our Republic, in order to establish the theory of a double sovereignty, that is not less unnecessary and inexpedient than it is chimerical and absurd, to "arrogantly set all ordinary law and justice at defiance." Not only are we defying all Christendom, but are confusing the subject, and rendering it incomprehensible.

us.

Confusion of terms.

State and Sovereignty, for instance, have clear and definite signification according to those old writers, and it is of fundamental importance that their precise meaning be preserved; yet Story's remarks quoted See chap. ill. from his Commentaries on the Constitution, exhibit the utter confusion in the use of these chief words: A league is considered by these old authorities, and well established, too, to be the only means of binding sovereign States. Yet Mr. Webster, with his wonderful eloquence and power, intimates that we have found a means of subjecting supreme au

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thority to the coercive control of government. At least, if it does not $5.Importance mean that, his great speech in reply to Calhoun means nothing.

tions to U. S.

of old author

The most of our teachings are so directly at variance with these old Kent's opinion authorities, as to imply their repudiation. To show that they are not ities. rejected, and at the same time to indicate the erroneous method in which the received principles are handled by our ablest, most honored writers, I quote from Chancellor Kent's Commentaries:

2

When the United States ceased to be a part of the British Empire, and assumed The United States subject the character of an independent nation,' they became subject to that system of rules to Internationwhich reason, morality, and custom had established among the civilized nations of al Law. Europe, as their public law. During the war of the American Revolution, Congress claimed cognizance of all matters arising upon the law of nations, and they professed obedience to that law," according to the general usages of Europe."* By this law we KENT'S Comare to understand that code of public instruction which defines the rights and mentaries i, 1. prescribes the duties of nations in their intercourse with each other. The faithful observance of this law is essential to national character and to the happiness of mankind. According to the observations of Montesquieu (b. 1, c. 3), it is founded on the principle, that different nations ought to do each other as much good in peace, and as little harm in war, as possible, without injury to their true interests. But as the precepts of this code are not defined in every case with perfect precision, and as nations have no common civil tribunal to resort to for the interpretation and execution of this law, it is often very difficult to ascertain, to the satisfaction of the parties concerned, its precise injunctions and extent; and a still greater difficulty is the want of adequate pacific means to secure obedience to its dictates.

* Ordinance of the 4th December, 1781, relative to maritime captures, Journals of Congress, Kent derives vol. vii, 185. The English judges have frequently declared that the law of nations was part of the our right to common law of England. Triquet v. Bath, 8 Burr, 1478; Heathfield v. Chilton, 4 ib., 2015; and International Law through it is well settled that the common law of England, so far as it may be consistent with the Constitu- English comtion of this country, and remains unaltered by statute, is an essential part of American jurispru- mon law. dence, vide infra, &c. [The Articles of Confederation having been ratified 1st March, 1781, Congress was duly authorized, under the International Code, to pass the ordinance, 4th Dec., We need not look to "the Common Law of England" as the derivative channel of the right of these States, individually or united, to participate in the benefits of International Law. We have it by nature and the Law itself.]

1 As observed by Martens (1. i, c. 3, § 2)-whom the learned jurist soon refers to as eminent Martens on authority, superior even to Pufendorf, "It is only in a very indefinite sense that these associations such a nation. of states (the Seven United Provinces and the Helvetic Union) can be considered as republics" or nations, and he gives ample reason for it, as is elsewhere shown. The United States being another Nation should "association of States," can only, "in a very indefinite sense," be styled a "nation;" so that, to be pluralizedgive the Law of Nations the definite application to which it is entitled, wherever acknowledged, the Chancellor should have spoken of these States as "independent nations," pluralizing that im-as in Declaportant word, for our fathers were very careful on this point, iterating and reiterating in their ever- ration of Indememorable Declaration of Independence, that this "ONE people" were not to be a single State like pendence. Great Britain, but "free and independent STATES." This erroneous starting leads to the other principal errors in these Commentaries.

2 Whatever "Congress claimed," whatever acquiescence emergencies compelled out of these Assumption of States, during the revolutionary period, in the acts of the Colonial Congress, the last of which be- power does not came the Continental Congress, gave those bodies no title to any position as a "nation." As the make Congress, Colonies, tacitly or explicitly authorized agent of the Colonies and afterwards of the nations comprising the or States, a United States, the Colonial Congresses, and afterwards the Continental Congress, may be said to nation. have been governed by International Law, as Congress undoubtedly was under the Articles of Confederation, and now under the present Constitution. But that could never make a "nation" out of distinct colonies while they were constituent parts of another nation; nor could it, when these Colonies became sovereign Nations, destroy, consolidate, these States or Nations, and make a "nation" out of Congress, or out of these States united. In this land of written law, for such a change as that, written authority must be produced.

It is in no spirit of conceit or of carping criticism that these comments are made, but solely to call attention to these sources of error from which the others flow.

Judiciary to

3 This difficulty was well apprehended by the framers of our Government, at least it would decide as to seem it should have been from their action. To provide a "common civil tribunal to resort to for International the interpretation and execution of this [international] law" between these Sovereign States, as Law.

$5.Importanco

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'There has been a difference of opinion among writers concerning the foundation of tions to U. S. the law of nations. It has been considered by some as a mere system of positive

Natural and

of Nations.

institutions, founded upon consent and usage; while others have insisted that it was Positive Law essentially the same as the law of nature, applied to the conduct of nations, in the character of moral persons, susceptible of obligations and laws. We are not to adopt either of these theories as exclusively true. The most useful and practical part of the law of nations is, no doubt, instituted or positive law, founded on usage, consent, and agreement. But it would be improper to separate this law entirely from natural jurisprudence, and not to consider it as deriving much of its force and dignity from the same principles of right reason, the same views of the nature and constitution of man, and the same sanction of Divine revelation, as those from which the science of morality is deduced. There is a natural and a positive law of nations. By the former, every state, in its relations with other states, is bound to conduct itself with justice, good faith, and benevolence; and this application of the law of nature has been called by Vattel the necessary law of nations, because nations are bound by the law of nature to observe it; and it is termed by others the internal law of nations, because it is obligatory upon them in point of conscience.*

Moral obliga. tion of States.

We ought not, therefore, to separate the science of public law from that of ethics, nor encourage the dangerous suggestion, that governments are not so strictly bound by the obligations of truth, justice, and humanity, in relation to other powers, as they are in the management of their own local concerns. States, or bodies politic, are to be considered as moral persons, having a public will, capable and free to do right and wrong, inasmuch as they are collections of individuals, each of whom carries with him into the service of the community the same binding law of morality and religion which ought to control his conduct in private life. The law of nations is a complex system, composed of various ingredients. It consists of general principles of right and justice, equally suitable to the government of individuals in a state of natural equality, and to the relations and conduct of nations; of a collection of usages, customs, and opinions, the growth of civilization and commerce; and of a code of conventional or positive law. In the absence of these latter regulations, the intercourse and conduct of nations are to be governed by principles fairly to be deduced from the rights and duties of nations, and the nature of moral obligation; and we have the authority of the lawyers of antiquity, and of some of the first masters in the modern school of public law for placing the moral obligation of nations and of individuals on similar grounds, and for considering individual and national morality as parts of one and the same science.

International The law of nations, so far as it is founded on the principles of Natural Law, is Law in Europe and America. equally binding upon every age, and upon all mankind. But the Christian nations of Europe, and their descendants on this side of the Atlantic, by the vast superiority of their attainments in arts, and science, and commerce, as well as in policy and government; and above all, by the brighter light, the more certain truths, and the more definite sanction which Christianity has communicated to the ethical jurisprudence of the ancients, have established a Law of Nations peculiar to themselves. They form together a community of nations united by religion, manners, morals, humanity, and *Vattel Prelim. § 7. Heineccius, in his "Elementa Juris Naturæ et Gentium," b. 1, c. 1 and 3 (and which is very excellent as to the first branch of the subject), and all the other great masters of ethical and national jurisprudence, place the foundation of the law of nature in the will of God, discoverable by right reason, and aided by divine revelation; and its principles, when applicable, apply with equal obligation to individuals and to nations. A recent French writer (M. Victor Foucher) divides the law of nature into two branches: (1) Public international law, which regulates the political relation of nation to nation; and (2) Private international law, which, though based upon the first, regulates the reciprocal and personal relations of the inhabitants of different states.

Heineccius.

Foucher.

Lieber's Poliical Ethics.

+ Dr. Francis Lieber, in his "Manual of Political Ethics," 2 vols., Boston, 1888, has shown with great force, and by the most striking and apposite illustrations, the original connection between right and morality, and the reason and necessity of the application of the principles of ethics to the science of politics and the administration of government. The work is excellent in its doctrines, and it is enriched with various and profound erudition.

well as of their Civil Law of the Constitution, would seem to have been the chief object of creating the Supreme Court.

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science, and united also by the mutual advantages of commercial intercourse, by the $5.Importanco habit of forming alliances and treaties with each other, of interchanging ambassadors, tions to U. S. and of studying and recognizing the same writers and systems of public law.*

After devoting the present lecture to a cursory view of the history of the law of nations, I shall enter upon the examination of the European and American code of international law, and endeavor to collect with accuracy, its leading principles, and to discuss its practical details.

tions in an

The law of nations, as understood by the European world, and by us, is the off- Law of Naspring of modern times. The most refined states among the ancients seem to have cient Greece. had no conception of the moral obligations of justice and humanity between nations, and there was no such thing in existence as the science of international law. They regarded strangers and enemies as nearly synonymous, and considered foreign persons and property as lawful prize. Their laws of war and peace were barbarous and deplorable. So little were mankind accustomed to regard the rights of persons or property, or to perceive the value and beauty of public order, that, in the most enlightened ages of the Grecian republics, piracy was regarded as an honorable employment. There were powerful Grecian states that avowed the practice of piracy; and the fleets of Athens, the best disciplined and most respectable naval force in all antiquity, were exceedingly addicted to piratical excursions. It was the received opinion, that Greeks, even as between their own cities and states, were bound to no duties, nor by any moral law, without compact, and that prisoners taken in war had no rights, and might lawfully be put to death, or sold into perpetual slavery, with their wives and children.

There were, however, many feeble efforts, and some successful examples, to be The Amphictyons an intermet with in Grecian history, in favor of national justice. The object of the Amphic- national court. tyonic Council was to institute a law of nations among the Greeks, and settle contests between Grecian states by a pacific adjustment.' It was also a law of nations among them, and one which was very religiously observed, to allow the vanquished the privilege of burying their own dead, and to grant the requisite truce for that purpose. Some of the states had public ministers resident at the courts of others, and there were some distinguished instances of great humanity shown to prisoners of war. During a cessation of arms in the course of the Peloponnesian War, Athens and Sparta agreed to an exchange or mutual surrender of prisoners. The sound judgment and profound reflections of Aristotle naturally raised his sense of right above the atrocious maxims and practices of his age, and he perceived the injustice of that doctrine of Grecian policy, that, by the laws of war, the vanquished became the absolute property of the victor. "Wise men," he observed, "entertained different opinions upon that subject. Some considered superiority as a proof of virtue, because it is its

ries on the

*The law of nature, by the obligations of which individuals and states are bound, is identical MANNING'S with the will of God, and that will is ascertained, says Mr. Manning, either by consulting Divine Commentarevelation, where that is declamatory, or by the application of human reason where revelation is Law of Nasilent. Christianity, in the words of Butler, "is an authoritative publication of natural religion," tions. and it is from the sanction which revelation gives to natural law, that we must expect the gradual increase of the respect paid to justice between nations. Christianity reveals to us a general system of morality, but the application to the details of practice is left to be discovered by buman reason. See Commentaries on the Law of Nations, by William Oke Manning, Esq., London, 1839, b. 2, ch. 1. This work is the first English treatise which I have seen, containing a regular and didactic discussion of the science, and it is a work of great excellence; and I beg leave to recommend it strongly to the attention of the American student.

1 It was; though Grote, Thirlwall and other authorities consider the Amphictyonic Union to International have been chiefly for religious purposes. Our object was the same under the first Constitution, court of Greecewhich signally failed. Having learned, by over a century of practice, the wisdom of dividing to different agents the exercise of Sovereignty, we applied it in the new Federal Constitution, by our first atseparating the legislative, executive, and judicial departments, and further dividing the legislative. temptThe Amphictyonic Council, the Achean League, our first Congress, were liable to have their judg ments warped by political and other considerations, and a tribunal must be devised that, rendered our second attempt. independent of all extraneous influences, would be able justly to decide every question of difference according to the laws instituted between the parties, and the immutable principles of right and justice, recognized and established in the code of International Law. De Tocqueville does not De Tocqueover-estimate the importance of the Federal Judiciary, in considering it in effect the key-stone of ville. our governmental arch.

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$5.Importance natural effect, and they asserted it to be just that the victors should be masters of the tions to U. S. vanquished; whilst others denied the force of the argument, and maintained that nothing could be truly just which was inconsistent with humanity." He then proceeded to weaken by argument the false foundations on which the law of slavery, by means of capture in war, was established; and though he does not write on the subject very distinctly or forcibly, it seems to be quite apparent that his convictions were against the law.

Influence of
Christianity.

Of Chivalry.

Of the Civil
Law.

In like manner is the subject discussed as to Rome and the middle ages, but we pass over to page 10 of Kent.

Of all these causes of reformation, the most weight is to be attributed to the intimate alliance of the great powers as one Christian community. The influence of Christianity was very efficient towards the introduction of a better and more enlightened sense of right and justice among the governments of Europe. It taught the duty of benevolence to strangers, of humanity to the vanquished, of the obligation of good faith, and of the sin of murder, revenge, and rapacity. The history of Europe, during the early periods of modern history, abounds with interesting and strong cases, to show the authority of the church over turbulent princes and fierce warriors, and the effect of that authority in meliorating manners, checking violence, and introducing a system of morals, which inculcated peace, moderation, and justice. The church had its councils or convocations of the clergy, which formed the nations professing Christianity into a connection resembling a federal alliance, and those councils sometimes settled the titles and claims of princes, and regulated the temporal affairs of the Christian powers. The confederacy of the Christian nations was bound together by a sense of common duty and interest in respect to the rest of mankind. It became a general principle of belief and action, that it was not only a right, but a duty, to reduce to obedience, for the sake of conversion, every people who professed a religious faith different from their own. To make war upon infidels was, for many ages, a conspicuous part of European public law; but this gross perversion of the doctrines and spirit of Christianity had at least one propitious effect upon the Christian powers, inasmuch as it led to the cultivation of peace and union between them, and to a more free and civilized intercourse. The notion that it was lawful to invade and subdue Mahometan and Pagan countries, continued very long to sway the minds of men; and it was not till after the age of Grotius and Bacon, that this error was entirely eradicated. Lord Coke held that an alliance for mutual defence was unlawful between Christians and Turks; and Grotius was very cautious as to the admission of the lawfulness of alliances with infidels, and he had no doubt that all Christian nations were bound to assist one another against the attacks of infidels. Even Lord Bacon thought it a matter of so much doubt, as to propound it seriously as a question, whether a war with infidels was not first in order of dignity, and to be preferred to all other just temporal quarrels; and whether a war with infidels might not be undertaken merely for the propagation of the Christian faith, without other cause of hostility.1

The influence of chivalry was beneficial upon the laws of war. It introduced declarations of war by heralds; and to attack an enemy by surprise was deemed cowardly and dishonorable. It dictated humane treatment to the vanquished, courtesy to enemies, and the virtues of fidelity, honor, and magnanimity in every species of warfare.

The introduction and study of the civil law must also have contributed largely to more correct and liberal views of the rights and duties of nations. It was impossible that such a refined and wise system of municipal and ethical jurisprudence as the Roman law, could have been taught in universities and schools, and illustrated by a succession of eminent civilians, who were worthy of being associated with the Roman

1 These most Christian nations need to understand this important truth. It is not the duty of one sovereign State to correct the wrongs of another. Connecticut is not responsible for Maryland, and what is more, has no right to press her excellences upon the latter; no shadow of right to correct its errors.