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COMMENTARIES

ON

AMERICAN LAW.

PART I.

OF THE LAW OF NATIONS.

LECTURE I.

OF THE FOUNDATION AND HISTORY OF THE LAW OF NATIONS.

WHEN the United States ceased to be a part of the British empire, and assumed the character of an independent nation, they became subject to that system of rules which reason, morality and custom had established among the civilized nations of Europe, as their public law. During the war of the American revolution, congress claimed cognizance of all matters arising upon the law of nations, and they professed obedience to that law," according to the general usages of Europe." (a) By this law we are to understand that code of public instruction, which defines the rights and prescribes the duties of nations, in their intercourse with each other. The faithful observance of this law is essential to national character, and to the happiness of mankind. According to the observation of Montesquieu, (b) it is

(a) Ordinance of the 4th December, 1791, relative to maritime captures. Journals of Congress, vol. vii. 185. The English judges have frequently declared that the law of nations was part of the common law of England. Triquet v. Bath, 3 Burr. 1478; Heathfield v. Chilton, 4 Ib. 2015; and it is well settled that the common law of England, so far as it may be consistent with the constitutions of this country, and remains unaltered by statute, is an essential part of American jurisprudence. Vide infra, pp. 342, 472, 473.

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founded on the principle, that different nations ought to do *2 each other as much good in peace, and as little harm in war, as possible, without injury to their true interests. But as the precepts of this code are not defined in every case with perfect precision, and as nations have no common civil tribunal to resort to for the interpretation and execution of this law, it is often very difficult to ascertain, to the satisfaction of the parties concerned, its precise injunctions and extent; and a still greater difficulty is the want of adequate pacific means to secure obedience to its dictates.

Natural

There has been a difference of opinion among wriLaw of Naters, concerning the foundation of the law of nations. tions. It has been considered by some as a mere system of positive institutions, founded upon consent and usage; while others have insisted that it was essentially the same as the law of nature, applied to the conduct of nations, in the character of moral persons, susceptible of obligations and laws. We are not to adopt either of these theories as exclusively true. The most useful and practical part of the law of nations is, no doubt, instituted or positive law, founded on usage, consent, and agreement. But it would be improper to separate this law entirely from natural jurisprudence, and not to consider it as deriving much of its force and dignity from the same principles of right reason, the same views of the nature and constitution of man, and the same sanction of Divine revelation, as those from which the science of morality is deduced. There is a natural and a positive law of nations. By the former, every state, in its relations with other states, is bound to conduct itself with justice, good faith, and benevolence; and this application of the law of nature has been called by Vattel the necessary law of nations, because nations are bound by the law of nature to observe it; and it is termed by others the internal law of nations, because it is obligatory upon them in point of conscience. (a)

(a) Vattel, Prelim. sec. 7. Omni autem in re consensio omnium gentium lex naturæ putanda est. Cic. Tusc. Disp. 1, 13. Heineccius, in his Elementa Juris Naturæ et Gentium, b. 1, c. 1 and 3, (and which is very excellent as to the first branch of the subject,) and all the other great masters of ethical and national jurisprudence, place the foundation of the law of nature in the will of God, discoverable by right reason, and aided by Divine revelation; and its principles, when applicable, apply with equal

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We ought not, therefore, to separate the science of Moral obpublic law from that of ethics, nor encourage the dan- States. ligation of gerous suggestion, that governments are not so strictly *3 bound by the obligations of truth, justice, and humanity, in relation to other powers, as they are in the management of their own local concerns. States, or bodies politic, are to be considered as moral persons, having a public will, capable and free to do right and wrong, inasmuch as they are collections of individuals, each of whom carries with him into the service of the community the same binding law of morality and religion which ought to control his conduct in private life. (a) The law of nations is a complex system, composed of various ingredients. It consists of general principles of right and justice, equally suitable to the government of individuals in a state of natural equality, and to the relations and conduct of nations; of a collection of usages, customs, and opinions, the growth of civilization and commerce; and of a code of conventional or positive law. (b) In the absence of these latter regulations, the intercourse and conduct of nations are to be governed by principles fairly to be deduced from the rights and duties of nations, and the nature of moral obligation; and we have the authority of the lawyers of antiquity, and of some of the first masters in the modern school of public law, for placing the moral obligation of nations and of individuals on similar grounds, and for considering individual and national morality as parts of one and the same science. (c)

obligation to individuals and to nations. A recent French writer (M. Victor Foucher,) divides the law of nat ons into two branches. (1.) Public international law, which regulates the political relation of nation to nation; and (2.) Private international law, which, though based upon the first, regulates the reciprocal and personal relations of the inhabitants of different states.

(a) Dr. Francis Lieber, in his Manual of Political Ethics, 2 vols. Boston, 1838, has shown with great force, and by the most striking and apposite illustrations, the original connection between right and morality, and the reason and necessity of the application of the principles of ethics to the science of politics and the administration of government. The work is excellent in its doctrines, and it is enriched with various and profound erudition.

(b) 2 Mason's Rep. 448. Story, J.

(c) A writer in the Edinburgh Review for April, 1843, considers the elements of which the law of nations is composed, as consisting (1.) of international morality, being the rules commanded by the Deity, and which may be called the divine or natural law of nations; (2.) of international law, being rules of conduct sauctioned by the pub

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