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when the peculiarity of foreign nationality pervades the subject-matter. This division, as already stated, has been called the security of foreigners, but it in reality nearly coincides with what modern jurists have often described as private international law.

Public international law.-The other part of the law of nations, which has been called public international law, and is a voluminous code in itself, differs in three most vital particulars from what constitutes the municipal law of a country. When one speaks of the municipal law, there are necessarily implied three essential characteristics of that law. 1. That there is a recognised organ of legislation to alter any part of that law, and adapt it to the varying circumstances and situations which arise. 2. That there is implied, secondly, a recognised court or tribunal to settle authoritatively the meaning of that law and its application to the circumstances of each individual case. 3. And thirdly, there is implied a definite and recognised mode of enforcing the decisions of such tribunal by the appropriate executive machinery, involving such punishment as courts can inflict. In all and each of these three vital characteristics that part of the law of nations called public international law is altogether deficient, so that to call it a law at all is rather a figure of speech than a correct use of technical language. It is a law only in the sense in which the code of honour or the code of morals, or religion, or any other rule of conduct is a law, being a collection of self-imposed rules and maxims drawn up in imitation of municipal laws, and so as to adapt the spirit and essence of that law, and of the rules of morality which underlie all law, to the circumstances and conduct of two independent and irresponsible powers, acknowledging no common superior, and therefore not subject to any compulsory enforcement of the will of each other.

It may be asked how it is that such a code of law as this arises and acquires respect and voluntary obedience, so that though no nation is itself bound, or can compel another to give obedience to it, yet if the subject-matter is of sufficient moment, one will go to war with another to enforce it.

How law of nations arises.—It has been said by Montesquieu that the law of nations is founded on the principle, that different nations ought to do to each other as much

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good in peace and as little harm in war as possible, without injury to their true interests.1 This explanation seems to accept as a necessity, what was then probably deemed as inevitable as a law of nature, that war must occasionally occur, and that although it could not be prevented, yet its accompanying evils might be mitigated. But the great thinkers of the world, who constantly discover higher standards of morality, have inculcated the doctrine, that nations are not necessarily natural enemies, that they do not necessarily require to fight with each other over every difference, that brute force and blind chance have not necessarily any close connection with the merits of their quarrel any more than the duels of gladiators or the ordeals of the middle ages-that war, so far from being an inevitable necessity, may yet in the progress of enlightenment come to be treated, like piracy, as the common enemy of human progress. The law of nations in truth arises just as the municipal law of a country arises, from inevitable necessity, for the gravitation of human experience in all ages and circumstances is towards some kind of generalization of the rules of justice and mutual respect, founded on the still more elementary sentiment, that all nations, like men, are equal, and strive to attain equality of advantages in whatever circumstances they are placed. As municipal law springs gradually out of this sentiment between individuals, so a sentiment arises of a like kind between nation and nation. This law of nations, or public international law, is however, not a part of the substantive municipal law. Its sole end and object bring it within the category of administrative law. A nation undertakes wars, not for any benefit inherent in war itself, but as a means to an endas a means of preserving its own municipal law intact, or enhancing the benefits arising from it, whether these benefits consist in expanding commerce, in enlarging the area of territory, or in manifesting power and resources for deterrent effects. The duty of declaring war and carrying it on, and all the details of public international law with regard to it, thus form part of the business of the executive government, and as such belong to that division of the law already designated "the government." 2

1 Montesq. L'Esprit, b. i. c. 3.

The jus gentium and jus naturale meant the same thing in Roman

Distinction of the law of nature. The law of nature, or natural law, is a phrase which constantly occurs in the writings of most jurists and of all political writers, and there is, perhaps, none which is less clearly defined. Some even give to it the importance of a separate division by itself, and talk of the divine law, natural law, international law, and positive law, as the four great divisions. In the great variety of treatment which this kind of law has received, it is impossible to discern any well-defined idea, and it is difficult to avoid the conclusion of Bentham, that its descriptive name is a metaphor and nothing more. Yet it deserves some notice in any work which professes to give a complete outline of any one municipal law, more especially as every writer in turn has attached to it some meaning of his own.

Definitions of the law of nature. The law of nature was recognised by Plato and Aristotle and Cicero as something differing from the municipal law of each community.1

Cicero says, Law is right reason congruous to nature, pervading all minds, constant, eternal, which calls to duty by its commands, and repels from wrong-doing by its prohibitions, and to the good does not command or forbid in vain, while the evil-disposed are unmoved by its exhortations and warnings. This law cannot be annulled, superseded, or overruled. No senate, no people can loose us from it: no jurist, no interpreter can explain it away. It is not one law at Rome, another at Athens: one at present, another at some future time; but one law, per

law, though the Romans, by their intercourse with other people, and by comparing their own rules of law with those of foreigners, could not fail to discover those universal principles which prevail in the law of all nations. The term jus gentium indicates the accidental mode in which the notion originated, and the jus naturale indicates the permanent source which it had in the primary instincts and habits of human beings, who are all formed alike."-Long's Discourse, 64.

"Before any systematic treatises were published on public international law, the rules rested on theological casuistry, or on the analogies of positive and local law, or on the loose practice of nations and precedents rather of arms than of reason. Ayala in 1582 and Albericus Gentilis in 1583 and 1589 reduced the whole to order, and they were soon superseded by Grotius in 1625."-2 Hallam, Lit. Hist. 179.

1 Arist. Rhet. i. 13.

petual and immutable, including all nations and all times."1 Justinian's Institutes describe the law of nature as that which has taught the lower animals as well as man. Modern writers treat the law of nature as almost synonymous with moral law.2

Law of nature has no historical basis.-Though some

1 Cic. De Rep. iii. 22, quoted Lactant. Inst. vi. 8.

The following are some of the definitions of the Law of Nature:BURLAMAQUI-Those rules which nature prescribes to man with a view to his true and enduring happiness.

PUFFENDORF-That universal rule of human actions to which every man is obliged to conform as he is a reasonable creature.

RUTHERFORTH-Those rules of moral conduct which mankind in their intercourse with each other are obliged to observe, from their very nature and constitution.

MONTESQUIEU-Those laws anterior to the establishment of society. DAGGE'S Crim. Law-Those laws which every intelligent being is obliged to observe under an unknown penalty for transgressing the prescribed will of that Supreme Being from whom he derives his rational powers.

GROTIUS The dictate of right reason, whereby any action is morally good or bad, and as such is enjoined or prohibited by God, the author and preserver of nature; also the principles of right reason, which enable us to know that a certain action is right or wrong according to its congruity with the reasonable and social nature of man.-De Jure, b. i. c. 1, s. 10.

COKE-The moral law written with the finger of God on the heart of man.

KENT-Rules of conduct, the deductions of right reason, and also declared by divine revelation.

FORTESCUE-The truth of justice which is capable of being by right reason revealed.-De Nat. b. i. ch. 31.

MILTON-The law of nature is the only law of laws truly, and properly, to all mankind fundamental, the beginning and end of all government.-Milton, Free Com.

BOLINGBROKE with Ciceronian eloquence follows Cicero, and says the law of nature is the law of laws.-Bolingbr. Frag. Ess. ix. xvi. The JEWS had different notions of the law of nature from surrounding nations, and did not derive it from customs of nations, but from oral tradition of God's revelation.-3 Hallam, Lit. Hist. 146.

The Frederician Code says the first state which man acquires is the state of liberty, for naturally all men are free.-Fred. Code, p. i. b. i. tit. 5.

BENTHAM says the expression, law of nature, is figurative and metaphorical; it is a metaphor taken from the use given to the same word "law," in the case of political law; it is to that source consequently that we must resort for an explanation of it.-7 Benth. Works, 83.

assume, and though the popular notion seems to be, that the law of nature is some law which precedes municipal law, and which continues to form the substratum and the better part of the municipal law after the secondary stage has been entered upon, the ready answer is, that such a theory is opposed to facts. There is not and never was any other law than municipal law known and familiar to any society, however rude. The two conditions, if there are two, are simultaneous and correlative. Municipal law is to each community the sum of all laws and all customs, whencesoever derived. Yet not unfrequently one hears appeals made to the law of nature, as if in some anterior and barbaric state, or in some golden age,1 each nation once possessed a better law than the municipal law, and as if the rudiments of a purer law can be found by reverting to those early times. Nothing is more fallacious than this. The further back we go in the history of any of the existing civilised nations, the less we find of the rudiments of municipal law, and the fewer of those features which form the pride and glory of present times. He who reads Tacitus and Cæsar for the early condition of the British and German races, and the various travellers who have seen and described tribes still more barbaric in all parts of the world, will find scarcely a trace of the leading doctrines and maxims of modern municipal law. With such tribes and races, marriage, or what corresponded to it, was neither a contract, nor a religious rite, nor even a personal association of any kind. Fraud and plunder were often viewed as masterly displays of genius, worthy to be applauded. Chastity was not only repudiated, but its absence was often a positive merit, or even an indispensable duty. Public worship had nothing but the semblance of some fiendish and malignant murder of innocent and blameless victims, to propitiate an unknown and an unappeasable demon. All the finer feelings, which flow from the exercise of our highest faculties, from thought, speech, benevolence, piety,

1 TACITUS Says the first race of men lived free from crime and without chastisement or restraint.-Tacit. Ann. b. iii. c. 26.

2 PITT said, in 1792, "We were once as obscure among the nations of the earth, as savage in our manners, as debased in our morals, as degraded in our understandings, as the African race was then." -29 Parl. Hist. 1157.

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