$5. Law of and Law of Nations asserted to be identical, by Hobbes and Puffendorf. § 6. How far Nations is a positive law de rived from the posi tive consent of nations. Hobbes, who appeared after Grotius, and before Puffendorf, asserted that the general principles of natural law and the law of nations are one and the same, and that the distinction between them is merely verbal. Thus he says, "The natu ral law may be divided into the natural law of men, and the natural law of states, commonly called the law of nations. The precepts of both are the same; but since states, when they are once instituted, assume the personal qualities of individual men, that law, which when speaking of individual men, we call the Law of Nature, is called the Law of Nations when applied to whole states, nations, or people." To this opinion Puffendorf implicitly subscribes, declaring that there is no other voluntary or positive law of nations. properly invested with a true and legal force, and binding as the command of a superior power." In conformity with this opinion, Puffendorf contents himself with laying down the general principles of natural law, leaving it to the reader to apply it as he might find it necessary to private individuals or to independent societies." Grotius, on the other hand, considers the law of nations as the Law of a positive institution, deriving its authority from the positive consent of all, or the greater part of nations, which he supposes to be united in a social compact for this purpose. But one of his commentators (Rutherforth) infers that there can be no such positive law of nations, because there is no such social union among nations as that supposed by Grotius. He concludes that the same law which is called the law of nature when applied to separate and unconnected individuals, becomes the law of nations when it is applied to the collective bodies of civil societies, considered as moral agents, or to the several members of civil societies, considered not as distinct agents, but as parts of these collective bodies. At the same time, he admits that the natural law is not the only measure of the obligations that nations may be under to one 4 De Cive, cap. 14. § 4. 5 De Jure Naturæ et Gentium, lib. ii. cap. 3. § 23, another. When considered as moral agents, they become capable, as individuals are, of binding themselves to each other by particular compacts to do or avoid what the law of nature has neither commanded nor forbidden. But these obligations neither arise from a positive law of nations, nor produce such a law. They arise from an immediate and direct consent, and extend no farther than to the nations, which by their own act of immediate and direct consent have made themselves parties to them. The only foundation then, according to this writer, of international law, so far as it differs from the law of nature, is the general consent of mankind to consider each separate civil society as a distinct moral being. He contends that no evidence of a positive international law can be collected from usage, because there is no immemorial, constant, uniform practice among nations from which such a law can be collected. But if the law of nations, instead of being merely positive, is only the law of nature applied in consequence of a positive agreement among mankind to the collective bodies of civil societies as moral agents, and to the several members of such societies as parts of these bodies, the dictates of this law may be ascertained by the same means that we use in searching for the law of nature. The history of what has passed from time to time among the several nations of the world may likewise be of some use in this inquiry: not because any constant and uninterrupted practice in matters which are indifferent by the law of nature can be collected from thence; but because we shall there find what has been generally approved, and what has been generally condemned in the variable and contradictory practice of na "There are two ways," says Grotius, (lib. i. cap. 1, § xii.) "of investigating the law of nature: we ascertain this law, either by arguing from the nature and circumstances of mankind, or by observing what has been generally approved by all nations, or at least by all civilized nations. The former is the more certain of the two: but the latter will lead us, if not with the same certainty, yet with a high degree of probability, to the knowledge of this law. For such a universal approbation must arise from some universal principle; $7. Law of Nations derived from reason and usage. and this principle can be nothing else but the common sense or reason of mankind. Since, therefore, the general law of nature may be investigated in this manner, the same law as it is applied particularly to nations as moral agents, and hence called the law of nations, may be investigated in the same manner." Hence his commentator infers, that if we understand what the law of nature is, when it is applied to individual persons in a state of natural equality, we shall seldom be at a loss to judge what it is, when applied to nations, considered as collective persons in a like state of equality." Bynkershoek, (who wrote after Puffendorf, and before Wolf and Vattel,) derives the law of nations from reason and usage (ex ratione et usu,) and founds usage on the evidence of treaties and ordinances (pacta et edicta,) with the comparison of examples frequently recurring. In treating on the law of contraband, he says, "The law of nations on this subject is to be drawn from no other source than reason and usage. Reason commands me to be equally friendly to two of my friends who are enemies to each other, and hence it follows that I am not to prefer either in war. Usage is shown by the constant, and as it were, perpetual custom which sovereigns have observed of making treaties and ordinances upon this subject, for they have often made such regulations by treaties to be carried into effect in case of war, and by laws enacted after the commencement of hostilities. I have said by, as it were, a perpetual custom; because one, or perhaps two treaties, which vary from the general usage, do not alter the law of nations."7 In treating of the question as to the competent judicature in cases affecting ambassadors, he says: "The ancient jurisconsults assert, that the law of nations is that which is observed, in accordance with the light of reason, between nations, if not among all, at least certainly among the greater part, and those the most civilized. According to my opinion Rutherforth's Inst. of Natural Law, b. i. c. 9, §§ 1—6. 7 Quæstiones Jur. Pub. cap. 10. we may safely follow this definition, which establishes two distinct bases of this law; namely, reason and custom. But in whatever manner we may define the law of nations, and however we may argue upon it, we must come at last to this conclusion, that what reason dictates to nations, and what nations observe between each other, as a consequence of the collation of cases frequently recurring, is the only law of those who are not governed by any other-(unicum jus sit eorum, qui alio jure non reguntur.) If all men are men, that is to say, if they make use of their reason, it must counsel and command them certain things which they ought to observe as if by mutual consent, and which being afterwards established by usage, impose upon nations a reciprocal obligation; without which law, we can neither conceive of war, nor peace, nor alliances, nor embassies, nor commerce.”— Again, he says, treating the same question: "The Roman and pontifical law can hardly furnish a light to guide our steps: the entire question must be determined by reason and the usage of nations. I have alleged whatever reason can adduce for or against the question: but we must now see what usage has approved, for that must prevail, since the law of nations is thence derived." In a subsequent passage of the same treatise, he says: "It is nevertheless most true, that the States General of Holland alleged in 1651, that according to the law of nations, an ambassador cannot be arrested, though guilty of a criminal offence; and equity requires that we should observe that rule unless we have previously renounced it. The law of nations is only a presumption founded upon usage, and every such presumption ceases the moment the will of the party who is affected by it is expressed to the contrary. Huberus asserts that ambassadors cannot acquire or preserve their rights by prescription; but he confines this to the case of subjects who seek an asylum in the house of a foreign minister against the will of their own sovereign. I hold the rule to be general as to every privilege of ambassadors, and that there is no one they can * Ibid. cap. 7, § viii. *De Foro Legatorum, cap. 3, § xii. § 8. The law of the law of nature applied to Sovereign states. pretend to enjoy against the express declaration of the sovereign, because an express dissent excludes the supposition of a tacit consent, and there is no law of nations except between those who voluntarily submit to it by tacit convention."10 Without refining too much upon this subject, it may be nations is properly observed that international law is something more not merely and other than merely the natural law (the law of God) applied to the conduct of independent states considered as moral beings. In order to determine what is the rule to be observed among nations in any particular case, it is not suf ficient to inquire what would be the natural law in a similar case, when applied to individual persons supposed to be living in a state of social union, independently of positive human institutions for their government. "The application of a rule," says Vattel, "cannot be reasonable and just, unless it is made in a manner suitable to the subject. We are not to believe that the law of nations is precisely and in every case the same as the law of nature, the subjects of them only excepted, so that we need only substitute nations for individuals. A civil society or state is a subject very different from an individual of the human race; whence, in many cases, there follow, in virtue of the law of nature itself, very different obligations and rights; for the same general rule, applied to two subjects, cannot produce exactly the same decisions when the subjects are different; since a particular rule, that is very just with respect to one subject, may not be applicable to another. There are many cases, then, in which the law of nature does not determine between state and state as it would between man and man. We must therefore know how to accommodate the application of it to different subjects; and it is the art of applying it with a justness founded on right reason, that renders the law of nations a distinct science." 9911 10 De Foro Legatorum, cap. 19, § vi. 11 Vattel, Droit des Gens, Prelim. § 6. This modification of natural law, in its application to the mutual relations of states, is attributed by Vattel him |