페이지 이미지
PDF
ePub

"The

being generally acknowledged and adopted by all civilised nations *. The definitions given by the emperor Justinian, of the law of nature, the law of nations, and the civil law, are well known. “ 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 na“ tion has established for herself, and which pecu- .

liarly belongs to each state or civil society. And " that law, which natural reason has established

among all mankind, and which is equally observed

by all people, is called the law of nations, as being “ a law which all nations follow 1.” 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 necessi“ ties 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

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

o free g.”

[ocr errors]

* Neque vero hoc folum natura, id eft, jure gentium, &c. Cicero de Offic. lib. iii. c. 5.

+ Jus naturale eft, quod natura omnia animalia docuit. Instit. lib,

i.it. 2.

Quod quisque populus ipse sibi jus constituit, id ipfius proprium civratis est, vocaturque jus civile, quasi jus proprium ipsius civitatis : quol vero naturalis ratio inter omnes homines constituit, id apud omm's pera que cuftoditur, vocaturque jus gentium, quafi quo jure omnes gentes utantur. Ibid. § 1.

ġ Jus autein gentium omni humano generi commune est : nam usu exigene et humanis neceilitatibus, gentes humanæ jura quædam fibi conftituerunt. Bclla etenim orta sunt, et captivitates fecutæ et servi. tutes, qıæ funt naturali juri contrariæ. Jure enim naturali omnes homines ab initio liberi nasiebantur. Ibid. § 2.

others,

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

fécial 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 lovereign states. They differ only in the ideas they entertain of the origin whence that systein 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 va“ rious places, maintain the same thing as certain, “ such coincidence of sentiment must be attributed " to some general cause. Now, in the questions be

fore us, that cause must necessarily be one or the “ other of these two-either a justconsequence drawn " from natural principles, or a universal consent.

[ocr errors]

+ Feciales, quod fidei publicæ inter populos præerant : nam per hos fiebat ut justum conciperetur bellum (et inde defitum), et ut fædere fides pacis conftitueretur. Ex his mittebant, antequam conciperetur, çci res repeterent; et per hos etiam nunc fit fædus. Varro de Ling: Laz. lib. iv.

" The a 2

« The former discovers to us the law of nature, and 56 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 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 befides, Grotius, by his very distinction, and by exclufively appropriating the name of “ the law of na" tions' 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 considered that the law mult

* D: Jure Belli & Pacis, translated by Barbeýtac: Preliminary • Discourse, $ 4K

be

be applied to these new subjccts 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 esta“blished assume personal properties, that which is " termed the natural law when we speak of the du“ ties of individuals, is called the law of nations when

applied to whole nations or states *.” This author has well obferved, 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 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 fi He has not therefore separately treated of the law of nations,

* Rurfus (lex) naturalis dividi poteft in naturalem hominum, quæ fola obtinuit dici Lex Natura, et naturalem civitatum, quæ dici potest Lex Gertium, vulgo autem Jus Gentium appellatur. Præcepta utriusque cadem funt: fed quia civitates femel institutæ induunt proprietates kominum personales, lex quam, loquentes de hominum fingulorum officio, naturalem dicimus, applicata totis civitatibus, nationibus, five gentibus, vocatur Jus Gentium. De Cive, c. xiv. $ 4. + Puffendorf's Law of Nature and Nations, book ii, chap. iii, $ 23.

but

a 3

but has every-where 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 every body'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 instance, “ the principles and the rules of such a law are in fact " the fame as those of the law of nature, properly fo “ called; the only difference consisting in the mode “ of their application, which may be somewhat va“.ried, 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 ftates, 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 ex. tent 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 t, after each article of “ the law of nature, the application which may be

[merged small][ocr errors]
« 이전계속 »