PREFACE.

THE Law of Nations, though so noble and important a subject, has not, hitherto, been treated of with all the care it deserves. The greater part of mankind have, therefore, only a vague, a very incomplete, and often even a false notion of it. The generality of writers, and even celebrated authors, almost exclusively confine the name of "Law of Nations" to certain maxims and treatises recognised among nations, and which the mutual consent of the parties has rendered obligatory on them. This is confining within very narrow bounds a law so extensive in its own nature, and in which the whole human race are so intimately concerned; it is, at the same time, a degradation of that law, in consequence of a misconception of its real origin.

There certainly exists a natural law of nations, since the obligations of the law of nature are no less binding on states, on men united in political society, than on individuals. But, to acquire an exact knowledge of that law, it is not sufficient to know what the law of nature prescribes to the individuals of the human race. The application of a rule to various subjects, can no otherwise be made than in a manner agreeable to the nature of each subject. Hence, it follows, that the natural law of nations is a particular science, consisting in a just and rational application of the law of nature to the affairs and conduct of nations or sovereigns. All treatises, therefore, in which the law of nations is blended and confounded with the ordinary law of nature, are incapable of conveying a distinct idea, or a substantial knowledge of the sacred law of nations.

The Romans often confounded the law of nations with the law of nature, giving the name of "the law of nations" (Jus Gentium) to the law of nature, as being generally acknowledged and adopted by all civilized nations.* The definitions given by the emperor Justinian, of the law of nature, the law of nations, and the civil law, are well known. "The law of nature," says he, "is that which nature teaches to all animals":† thus he defines the natural law in its most extensive sense, not that natural law which is peculiar to man, and which is derived as well from his rational as from his animal nature. "The civil law," that emperor adds, "is that which each nation has established for herself, and which peculiarly belongs to each state or civil society. And that law, which na

* Neque vero hoc solum naturâ, id est, jure gentium, &c. Cicero de Offic. lib. iii. c. 5.

Jus naturale est, quod natura omnia animalia docuit. Instit. lib. i. tit. 2.

tural reason has established among all mankind, and which is equally observed by all people, is called the law of nations, as being law which all nations follow. In the succeeding paragraph, the emperor seems to approach nearer to the sense we at present give to that term. "The law of nations," says he, "is common to the whole human race. The exigencies and necessities of mankind have induced all nations to lay down and adopt certain rules of right. For wars have arisen, and produced captivity and servitude, which are contrary to the law of nature; since, by the law of nature, all men were originally born free." But from what he adds, that almost all kinds of contracts, those of buying and selling, of hire, partnership, trust, and an infinite number of others, owe their origin to that law of nations, it plainly appears to have been Justinian's idea, that, according to the situations and circumstances in which men were placed, right reason has dictated to them certain maxims of equity, so founded on the nature of things, that they have been universally acknowledged and adopted. Still this is nothing more than the law of nature, which is equally applicable to all mankind.

The Romans, however, acknowledged a law whose obligations are reciprocally binding on nations: and to that law they referred the right of embassies. They had also their fecial law, which was nothing more than the law of nations in its particular relation to public treaties, and especially to war. The feciales were the interpreters, the guardians, and, in a manner, the priests of the public faith.‡

The moderns are generally agreed in restricting the appellation of "the law of nations" to that system of right and justice which ought to prevail between nations or sovereign states. They differ only in the ideas they entertain of the origin whence that system arose, and of the foundations upon which it rests. The celebrated Grotius understands it to be a system established by the common consent of nations: and he thus distinguishes it from the law of nature: "When several persons, at different times, and in various places, maintain the same thing as certain, such coincidence of sentiment must be attributed to some general cause. Now, in the questions before us, that cause must necessarily be one or the other of these two-either a just consequence drawn from natural principles, or a universal consent. The former discovers to us the law of nature, and the latter the law of nations."§

That great man, as appears from many passages in his excellent work, had a glimpse of the truth: but as he had the task of extracting

*Quod quisque populus ipse sibi jus constituit, id ipsius proprium civitatis est, vocaturque jus civile, quasi jus proprium ipsius civitatis quod vero naturalis ratio inter omnes homines constituit, id apud omnes peræque custoditur, vocaturque jus gentium, quasi quo jure omnes gentes utantur. Instit. lib. i. tit. ii. 1.

Jus autem gentium omni humano generi commune est; nam usu exigente et humanis necessitatibus, gentes humanæ jura quædam sibi constituerunt. Bella etenim orta sunt, et captivitates secutæ et servitutes, quæ sunt na

turali juri contrariæ. Jure enim naturali omnes homines ab initio liberi nascebantur. Id. 3 2.

Feciales, quod fidei publicæ inter populos præerant: nam per hos fiebat ut justum conciperetur bellum (et inde desitum), et ut foedere fides pacis constitueretur. Ex his mittebant, antequam conciperetur, qui res repeterent: et per hos etiam nunc fit foedus. Varro de Ling. Lat. lib. iv.

De Jure Belli et Pacis, translated by Barbeyrac: Preliminary Discourse, & 41.

from the rude ore, as it were, and reducing into regular shape and form, a new and important subject, which had been much neglected before his time, it is not surprising that, having his mind burthened with an immense variety of objects, and with a numberless train of quotations, which formed a part of his plan, he could not always acquire those distinct ideas so necessary in the sciences. Persuaded that nations, or sovereign powers, are subject to the authority of the law of nature, the observance of which he so frequently recommends to them, that learned man, in fact, acknowledged a natural law of nations, which he somewhere calls the internal law of nations: and, perhaps, it will appear that the only difference between him and us lies in the terms. But we have already observed, that, in order to form this natural law of nations, it is not sufficient simply to apply to nations what the law of nature decides with respect to individuals. And, besides, Grotius, by his very distinction, and by exclusively appropriating the name of "the law of nations" to those maxims which have been established by the common consent of mankind, seems to intimate that sovereigns, in their transactions with each other, cannot insist on the observance of any but those last-mentioned maxims, reserving the internal law for the direction of their own consciences. If, setting out with the idea that political societies or nations live, with respect to each other, in a reciprocal independence, in the state of nature, and that, as political bodies, they are subject to the natural law, Grotius had, moreover, con- . sidered that the law must be applied to these new subjects in a manner suitable to their nature, that judicious author would easily have discovered that the natural law of nations is a particular science; that it produces between nations even an external obligation wholly independent of their will; and that the common consent of mankind is only the foundation and source of a particular kind of law, called the Arbitrary Law of Nations.

Hobbes, in whose work we discover the hand of a master, notwithstanding his paradoxes and detestable maxims,-Hobbes was, I believe, the first who gave a distinct, though imperfect idea, of the law of nations. He divides the law of nature into that of man, and that of states: and the latter is, according to him, what we usually call the law of nations. "The maxims," he adds, " of each of these laws are precisely the same: but as states, once established, assume personal properties, that which is termed the natural law, when we speak of the duties of individuals, is called the law of nations when applied to whole nations or states."* This author has well observed, that the law of nations is the law of nature applied to states or nations. But we shall see, in the course of this work, that he was mistaken in the idea that the law of nature does not suffer any necessary change in that application, an idea, from which

* Rursus (lex) naturalis dividi potest in naturalem hominum, quæ sola obtinuit dici Lex Naturæ, et naturalem civitatum, quæ dici potest Lex Gentium, vulgo autem Jus Gentium appellatur. Præcepta utriusque eadem sunt: sed quia civitates semel institutæ induunt pro

prietates hominum personales, lex quam, loquentes de hominum singulorum officio, naturalem dicimus, applicata totis civitatibus, nationibus, sive gentibus, vocatur Jus Gentium, De Cive, c. xiv. § 4.

he concluded that the maxims of the law of nature and those of the law of nations are precisely the same.

Puffendorf declares that he unreservedly subscribes to this opinion espoused by Hobbes.* He has not, therefore, separately treated of the law of nations, but has everywhere blended it with the law of nature, properly so called.

Barbeyrac, who performed the office of translator and commentator to Grotius and Puffendorf, has approached much nearer to the true idea of the law of nations. Though the work is in everybody's hands, I shall here, for the reader's convenience, transcribe one of that learned translator's notes on Grotius's Law of War and Peace.† "I acknowledge," says he, "that there are laws common to all nations-things which all nations ought to practise towards each other: and if people choose to call these the law of nations, they may do so with great propriety. But, setting aside the consideration that the consent of mankind is not the basis of the obligation by which we are bound to observe those laws, and that it cannot even possibly take place in this instancethe principles and the rules of such a law are, in fact, the same as these of the law of nature, properly so called; the only difference consisting in the mode of their application, which may be somewhat varied, on account of the difference that sometimes happens in the manner in which nations settle their affairs with each other.

It did not escape the notice of the author we have just quoted, that the rules and decisions of the law of nature cannot be purely and simply applied to sovereign states, and that they must necessarily undergo some modifications in order to accommodate them to the nature of the new subjects to which they are applied. But it does not appear that he discovered the full extent of this idea, since he seems not to approve of the mode of treating the law of nations separately from the law of nature as relating to individuals. He only commends Budæus's method, saying, "It was right in that author to point out, after each article of the law of nature, the application which may be made of it to nations. in their mutual relations to each other, so far, at least, as his plan permitted or required that he should do this."§ Here Barbeyrac made one step, at least, in the right track: but it required more profound reflection, and more extensive views, in order to conceive the idea of a system of natural law of nations, which should claim the obedience of states and sovereigns, to perceive the utility of such a work, and especially to be the first to execute it.

This glory was reserved for the Baron de Wolf. That great philosopher saw that the law of nature could not, with such modifications as the nature of the subjects required, and with sufficient precision, clearness, and solidity, be applied to incorporated nations, or states, without the assistance of those general principles and leading ideas by which

Puffendorf's Law of Nature and Nations, book ii. chap. iii. 23.

†Book i. chap. i. 14, note 3.

In his Elementa Philos. Pract.

? Note 2 on Puffendorf's Law of Nature and Nations, book ii. chap. 3, ? 23. I have not been able to procure Budæus's work, from which I suspect that Barbeyrac derived this idea of the Law of Nations.

the application is to be directed; that it is by those principles alone we are enabled evidently to demonstrate that the decisions of the law of nature, respecting individuals, must, pursuant to the intentions of that very law, be changed and modified in their application to states and political societies, and thus to form a natural and necessary law of nations:* whence he concluded, that it was proper to form a distinct system of the law of nations, a task which he has happily executed. But it is just that we should hear what Wolf himself says in his Preface.

"Nations," says he, "do not, in their mutual relations to each other, acknowledge any other law than that which Nature herself has established. Perhaps, therefore, it may appear superfluous to give a treatise on the law of nations, as distinct from the law of nature. But those who entertain this idea have not sufficiently studied the subject. Nations, it is true, can only be considered as so many individual persons living together in the state of nature; and, for that reason, we must apply to them all the duties and rights which nature prescribes and attributes to men in general, as being naturally born free, and bound to each other by no ties but those of nature alone. The law which arises from this application, and the obligations resulting from it, proceed from that immutable law founded on the nature of man; and thus the law of nations certainly belongs to the law of nature: it is, therefore, on account of its origin, called the natural, and, by reason of its obligatory force, the necessary law of nations. That law is common to all nations; and if any one of them does not respect it in her actions, she violates the common rights of all the others.

"But nations or sovereign states being moral persons, and the subjects of the obligations and rights resulting, in virtue of the law of nature, from the act of association which has formed the political body, the nature and essence of these moral persons necessarily differ, in many respects, from the nature and essence of the physical individuals, or men, of whom they are composed. When, therefore, we would apply to nations the duties which the law of nature prescribes to individual man, and the rights it confers on him in order to enable him to fulfil his duties, since those rights and those duties can be no other than what are consistent with the nature of their subjects, they must, in their application, necessarily undergo a change suitable to the new subjects to which they are applied. Thus, we see that the law of nations does

If it were not more advisable for the sake of brevity, of avoiding repetitions, and taking advantage of the ideas already formed and established in the minds of men,-if, for all these reasons, it were not more convenient to presuppose, in this instance, a knowledge of the ordinary law of nature, and on that ground to undertake the task of applying it to sovereign states, it would, instead of speaking of such application, be more accurate to say, that, as the law of nature, properly so called, is the natural law of individuals and

founded on the nature of man, so the natural law of nations is the natural law of political societies, and founded on the nature of those societies. But as the result of either mode is ultimately the same, I have, in preference, adopted the more compendious one. As the law of nature has already been treated of in an ample and satisfactory manner, the shortest way is simply to make a rational application of it to nations.

A nation here means a sovereign state, an independent political society.