and that he was even bound to answer civilly for his con- Admistracts that were good jure gentium, but for anything that ambassawas malum prohibitum, and not malum in se jure gentium, dors. he was not bound'. sion of Thus stood the law of nations at the age of Grotius Grotius. (A. D. 1625). It had been rescued, to a very considerable extent, from the cruel usages and practices of the northern 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 greatly in value and efficacy, from the intimate connexion 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; and he rose like a splendid luminary, dispelling darkness and confusion, and imparting light and security to the intercourse of nations. [Yet brilliant as he was, and powerful as has been the light he has cast upon this branch of ethics and jurisprudence, it would be unjust to pass over unnoticed the name of one who fairly deserves to share with him the honour of having founded the school of public law in Europe. The treatise, De Jure Belli, by Alberic Gentilis is, it is true, Alberic inferior in many respects to the great work of Grotius, whom he preceded by a few years; but it is a remarkable production, not only for the classical learning displayed in it, but for the historical information it conveys, and for the common-sense tone of many of its chapters. That his labours were of real practical value to others is clear from Grotius's own acknowledgment, as well as from the similarity of arrangement in the two works.] It is said by Barbeyrac", that Lord Bacon's works first suggested to 1 4 Inst. 153. [Triquet v. Bath, 3 Burrows, 1478. Taylor v. Best, 14 Common Bench, 487.] [Ayala's treatise on the rights of war was the first systematic book on the subject, preceding that of Gentilis by seven years, viz. 1582. But though the first systematic writer on Public Law, three authors of note had preceded him, viz. Machiavelli, Francisco Suarez, and Francisco Victoria. See as to their works Le Droit International, par Chas. Calvo, 1. 1, Introduction, pp. 20, 21. 3 Pref. to Puff. sec. 29. Gentilis. Interna- Grotius the idea of reducing the law of nations to the certainty and precision of a regular science. But Grotius has himself explained the reasons which led him to undertake his necessary, and most useful, and immortal work'. He found the sentiment universally prevalent, not only among the vulgar, but among men of reputed wisdom and learning, that war was a stranger 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 crime2. The object of Grotius was to correct these false theories and pernicious maxims, by shewing a community of sentiment among the wise and learned of all nations and ages in favour of the natural law of morality. He likewise undertook to shew 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, 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; thus he had the honour 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, at 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; whilst the treatises of some learned moderns on public law were most imperfect, and exceedingly defective in 2 Proleg. sec. 3 and 28. 1 Proleg. De Jur. Bell. tional illustrations from history, and in omitting to place their Internadecisions upon the true foundations of equity and justice'. La Grotius, therefore, went purposely into the details of Grotius, history and the usages of nations, resorting to the testimony of philosophers, historians, orators, poets, civilians, and divines, because they were the materials out of which the science of morality was formed; and when many men, at different times and places, unanimously affirmed the same thing for truth, it ought to be ascribed to some universal cause. His unsparing citation of authorities, in support of what the present age may consider very plain aud 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 nations3. dorf. Among the disciples of Grotius, Puffendorf has always Puffenheld the first rank, but his work, largely as it enters into the principles of natural law, is of very little practical value in teaching us what the law of nations is at this day. [Whatever merits it may have as a treatise on moral philosophy, as an exponent of International Law it has few or none, and to the same limbo of forgotten authors may be remitted the works of Wolfius, Burlamaqui, and Rutherforth.] Bynkershoeck's treatise on the Bynkerslaw of war has always been received as of great authority on that particular branch of International Law, the 1 Proleg. of Grot. sec. 36, 37, 38. 2 "Omni in re consensio omnium gentium lex naturæ putanda est." Cic. Tuscul. Quæst. Lib. I. cap. 13. [3 In the 2nd Vol. of Hallam's Literature of Europe (3rd edition, 1847), Part III. ch. 4, sec. 3, the reader will find a most useful and elaborate analysis of Grotius's work, De Jure Belli et Pacis. In Lerminier's Histoire du Droit, ch. 8, he will see its merits and influence ably criticized. In the 77th Vol. of the Edinburgh Review appears a short but vigorous examination of the claims of Grotius to his high fame and reputation, in an excellent article on the Law of Nations, by Nassau William Senior; and in the 4th and 9th chapters of Ancient Law Sir Henry Maine has well discussed the doctrines of Grotius, his theory of a Law of Nature, and the use he makes of the Roman Law in establishing it. See also Calvo, Le Droit Internat. T. 1, Introduction pp. 25-28.] hoeck. Writers on International Law. Vattel. subject being ably and copiously discussed. [His learning and power of research, the practical turn of his mind, his exegetical skill and the happy art with which he combined the two schools of law of his day, the philosophical and the positive, long made Bynkershoeck a favourite and trusted authority, and though it may be that he is too exclusive in his references to the ordinances of his own country, yet this defect is not sufficient to detract from the high reputation he has gained.] The most popular and the most elegant writer on the law of nations is Vattel, whose work is an abbreviated and improved edition of the large and systematic treatise of Wolf. [The great merit of Vattel lies in the easy pleasant style of his book, which has been cited more freely than that of any other public jurist, and is still the statesman's manual and oracle, but he is deficient in philosophical precision; the classification of his work is faulty, the selection of topics far from judicious, and their discussion sometimes tedious and diffuse, nor does he sufficiently support the general doctrines of International Law by historical proofs and precedents; yet Vattel's book will never fail to command notice as an excellent summary the rules of law that are applicable to most of the great questions raised by the mutual intercourse of states and nations, or to deserve approval for the honesty and high moral tone reflected in its pages.] The summary of the Martens. law of nations, by Professor Martens, is a treatise of great practical utility, based as it is upon the information he had gained from history and from the treaty engagements of the great nations of Europe. That his excellent manual on the law of nations is not free from errors and imperfections is undoubtedly true-errors arising partly from the exaggerated importance he attached to treaties, and imperfections caused by the limited scope of his work, yet he deserves the credit of being one of the first, if not the first writer, who had issued a readable work for students on a subject that for a long time had worn a most uninviting dress. Since the age of Grotius, the code of war has been vastly enlarged and improved, 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 neutrals, have grown into very important titles in the system of Modern improve ments in the Law of Nations. of ments in of Na national law. We now appeal to more accurate, more Modern authentic, more precise, and more commanding evidence improve of the rules of public law, by a reference to the decisions the Law of those tribunals to whom, in every country, the adminis- tious tration 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 be very great in favour 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, the binding force of the general usage and practice of nations, and the still greater respect due to judicial decisions recognizing and enforcing the principles of International Law. And as in England the decisions of Kent, Story, and other American judges, and the writings of Kent and Wheaton have received the notice which their learning and skill entitled them to receive, so in America in all foreign negotiations and domestic discussions of questions of national law, the most implicit respect has been paid 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 shewn to the great standing authorities on the law of nations. And in a case which came before Lord Mansfield in 1764, in the King's Bench', 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 1 Triquet v. Bath, 3 Burr. 1478. |