as any other private alien, and that he was even bound to answer civilly for his contracts that were good, jure gentium. (a) Grotius. Thus stood the law of nations at the age of Grotius. It had been rescued, to a very considerable extent, from the cruel usages and practices of the barbarians. It had been restored to some degree of science and civility by the influence of Christianity, the study of the Roman law, and the spirit of commerce. It had grown in value and efficacy, from the intimate conneetion and constant intercourse of the modern nations of Europe, who were derived from a common origin, and were governed by similar institutions, manners, laws, and religion. But it was still in a state of extreme disorder, and its principles were little known, and less observed. It consisted of a series of undigested precedents, without order or authority. Grotius has, therefore, been justly considered as the father of the law of nations. He arose like a splendid luminary, dispelling darkness and confusion, and imparting light and security to the intercourse of nations. It is said by Barbeyrac, (b) that Lord Bacon's works first suggested to Grotius the idea of reducing the law of nations to the certainty and precision of a regular science. Grotius has himself fully explained the reasons which led him to undertake his necessary, and most useful and immortal work. (c) He found the sentiment universally prevalent, not only among the vulgar, but among men of reputed wisdom and learning, that war was a stran- *16 ger to all justice, and that no commonwealth could be governed without injustice. The saying of Euphemus in Thucydides, he perceived to be in almost every one's mouth, that nothing which was useful was unjust. Many persons, who were friends to justice in private life, made no account of it in a whole nation, and did not consider it as applicable to rulers. He perceived a horrible licentiousness and cruelty in war, throughout the Christian world, of which barbarians might be ashamed. When men took up arms, there was no longer any reverence for law, either human or divine; and it seemed as if some malignant fury was sent forth into the world, with a general license for the commission of all manner of wickedness and crime. (a) * The object of Grotius was to correct these false theories and (a) 4 Inst. 153. (c) Proleg. De Jur. Bel. (b) Puff. sec. 29. pernicious maxims, by showing a community of sentiment among the wise and learned of all nations and ages, in favor of the natural law of morality. He likewise undertook to show that justice was of perpetual obligation, and essential to the well-being of every society, and that the great commonwealth of nations stood in need of law, and the observance of faith, and the practice of justice. His object was, to digest, in one systematic code, the principles of public right, and to supply authorities for almost every case in the conduct of nations; and he had the honor of reducing the law of nations to a system, and of producing a work which has been resorted to as the standard of authority in every succeeding age. The more it is studied, the more will our admiration be excited at the consummate execution of the plan, and the genius and erudition of the author. There was no system of the kind extant, that had been produced by the ancient philosophers of Greece, or by the primitive Christians. The work of Aristotle on the rights of war, and the writings of the Romans on their fecial law, had not survived the wreck of ancient literature; and the essays of some learned moderns on public law were *17 *most imperfect, and exceedingly defective in illustrations from history, and in omitting to place their decisions upon the true foundations of equity and justice. (a) Grotius, therefore, went purposely into the details of history and the usages of nations, and he resorted to the works of philosophers, historians, orators, poets, civilians, and divines, for the materials out of which the science of public morality should be formed; proceeding on the principle, that when many men, at different times and places, unanimously affirmed the same thing for truth, it ought to be ascribed to some universal cause. (b) His unsparing citation of authorities, in support of what the present age may consider very plain and undisputed truths, has been censured by many persons as detracting from the value of the work. On the other hand, the support that he gave to those truths, by the concurrent testimony of all nations and ages, has been justly supposed to contribute to that reverence for the principles of international justice, which has since distinguished the European nations. Among the disciples of Grotius, Puffendorf has always held the (a) Proleg. of Grot. sec. 36, 37, 38. (b) Omni autem in re consensio omnium gentium lex natura putanda est. Cic. Tuscul. Quæst. lib. 1, c. 13. * Martens. Bynkershoek. Vattel. first rank. His work went more at large into the prin- Puffendorf. ciples of natural law, and combined the science of ethics with what may be more strictly called the law of nations. It is copious in detail, but of very little practical value in teaching us what the law of nations is at this day. It is rather a treatise on moral philosophy than on international law; and the same thing may be said of the works of Wolfius, Burlamaqui, and Rutherforth. The summary of the law of nations, by Professor Martens, is a treatise of greater practical utility, but it is only a very partial view of the system, being confined to the customary and conventional law of the modern nations of Europe. (c) Bynkershoek's treatise on the laws of war has been received as of great authority on that particular branch of the science of the law of nations, and the subject is by him ably and copiously discussed. The work is replete with *18 practical illustration, though too exclusive in its references to the ordinances of his own country, to render his authority very unquestionable. The most popular, and the most elegant writer on the law of nations, is Vattel, whose method has been greatly admired. He professed to have followed the voluminous work of Wolff on the Law of Nature and Nations, and to be enlightened and guided by his learning, with much improvement upon the doctrine and arrangement of his great master. He has been cited, for the last half century, more freely than any one of the public jurists; but he is very deficient in philosophical precision. His topics are loosely, and often tediously and diffusively discussed, and he is not sufficiently supported by the authority of precedents, which constitute the foundation of the positive law of nations. There is no work which combines, in just proportions, and with entire satisfaction, an accurate and comprehensive view of the necessary and of the instituted law of nations, and in which principles are sufficiently supported by argument, authority, and example. Since the age of Grotius, the code of war has been vastly enlarged and improved, and its rights better defined, and its severities greatly mitigated. The rights of maritime capture, the principles of the law of prize, and the duties and privileges of neu (c) Wheaton, in his History of the Law of Nations, edit. N. Y. 1845, says that the treatise of Martens, of which a third edition in French appeared in 1821, Précis du Droit des Gens Modernes de l'Europe fondé sur les Traités et l'Usage, has become a justly esteemed manual of the science. the Law of Na Modern im- trals, have grown into very important titles in the sysprovements in tem of national law. We now appeal to more accurate, tions. more authentic, more precise, and more commanding evidence of the rules of public law, by a reference to the decisions of those tribunals, to whom, in every country, the administration of that branch of jurisprudence is specially intrusted. We likewise appeal to the official documents and ordinances of particular states, which have professed to reduce into a systematic code, for the direction of their own tribunals, and for the information of foreign powers, the law of nations, on those points which relate particularly to the rights of commerce and the duties of neutrality. But in the absence of higher and more authoritative sanctions, the ordinances of foreign states, the opinions of eminent statesmen, and the writings of distinguished jurists, are regarded as of great consideration on questions not settled by conventional law. In cases where the principal jurists agree, the presumption will *19 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. England and the United States have been equally disposed to acknowledge the authority of the works of jurists, writing professedly on public law, and the binding force of the general usage and practice of nations, and the still greater respect due to judicial decisions recognizing and enforcing the law of nations. In all our foreign negotiations and domestic discussions of questions of national law, we have paid the most implicit respect to the practice of Europe, and the opinions of her most distinguished civilians. In England, the report made in 1753, to the king, in answer to the Prussian memorial, is very satisfactory evidence of the obedience shown to the great standing authorities on the law of nations, to which I have alluded. And in a case which came before Lord Mansfield, in 1764, in the K. B., (a) he referred to a decision of Lord Talbot, who had declared that the law of nations was to be collected from the practice of different nations, and the authority of writers; and who had argued from such authorities as Grotius, Barbeyrac, Bynkershoek, Wicquefort, &c., in a case where British authority was silent. The most celebrated collections and codes of maritime (a) Triquet v. Bath, 3 Burr. 1478. law, such as the Consolato del Mare, the laws of Oleron, the laws of the Hanseatic league, and, above all, the marine ordinances of Louis XIV., are also referred to, as containing the most authentic evidence of the immemorial and customary law of Europe. * The dignity and importance of this branch of jurisprudence, cannot fail to recommend it to the deep attention of the Importance student; and a thorough knowledge of its principles is of the study. necessary to lawyers and statesmen, and highly ornamental to every scholar who wishes to be adorned with the accomplishments of various learning. Many questions arise in the course of commercial transactions, which require for their solution * 20 an accurate accquaintance with the conventional law of Europe, and the general doctrines of the prize tribunals. Though we may remain in peace, there is always war raging in some part of the globe, and we have at the present moment (a) neutral rights to exact, and neutral duties to perform, in the course of our Mediterranean trade, and in the trade to the Brazils, and along the shores of the Pacific. A comprehensive and scientific knowledge of international law is highly necessary, not only to lawyers practising in our commercial ports, but to every gentleman who is animated by liberal views, and a generous ambition to assume stations of high public trust. It would be exceedingly to the discredit of any person who should be called to take a share in the councils of the nation, if he should be found deficient in the great leading principles of this law; and I think I cannot be mistaken in considering the elementary learning of the law of nations, as not only an essential part of the education of an American lawyer, but as proper to be academically taught. My object, therefore, in some succeeding lectures will be, to discuss all the leading points arising upon the rights and duties of nations, in the several relations of peace, of war, and of neutrality. (a) November, 1824. |