PREFACE.

THE object which the Author has had in

view in undertaking to treat of the Law of Nations, has been to present to the Student of that branch of Law, which is conversant with the mutual Rights and Duties of Independent Political Communities, a systematic outline of the leading Principles which are at the foundation of that Law, and at the same time to illustrate the application of those Principles, as occasion served, by reference to the Practice of Nations in the conduct of their mutual Intercourse. For the purpose of such illustration, the Peace of Westphalia has been adopted as a suitable starting point, as that Event ushered in a new Era in the intercourse of Commonwealths, the Treaties of Munster and Osnabruck being the first practical recognition on the part of the Nations of Europe of the Prin

ciple of Territorial Sovereignty, and supplying a groundwork for an European Concert to uphold that Principle.

The Treatise of Grotius upon the Right of Peace and War, which had appeared in the early part of the Thirty Years' War, had contributed in a marked degree to pave the way for the conclusion of those Treaties, by familiarising the minds of Statesmen with the conception of Territorial Sovereignty; nor was there much difficulty in establishing the connection between the Sovereignty of Princes, as a Paramount Right, and the possession of Territory, for that Right was involved in the idea of the Imperial Supremacy, the whole civilised world being taken, for the purposes of that Supremacy, to be the Territory of a Common Sovereign. But the Rights incidental to Sovereignty, regarded in connection with the Absolate Ownership of Territory, were not so easy to demonstrate; in other words, the Rights of Independence, or, as they have been termed by certain writers on Jurisprudence, the

External Rights of Sovereignty had received no recognition, as there was no place for them, under that System. They had accordingly both to be reasoned out, and to be applied, and in this consisted the great merit of the labours of Grotius.

The proposition, that States, considered as Independent Political Communities, are all Equal in point of Right, however much they may differ in the extent of their Territorial Possessions, may be said to have been first propounded and successfully maintained by the Philosopher of Delft, and this Equality was practically recognised at the Peace of Westphalia, when the States of Central Europe for the first time grouped themselves together after the likeness of a family of Nations.

It is to be regretted at a time when much progress is being every where made in practice to establish the ascendency of the Reason over the Will, that certain eminent Writers, who have treated of General Jurisprudence, have

adopted the primeval Notion of Law, according to which, Law is exclusively to be regarded as a Rule of conduct imposed by a Sovereign Power upon a Subject Community; in other words, as the Enactment of the Will of a Superior Power. There is, according to this use of the word Law, no such thing as a Law of Nations, for Independent Political Communities from their nature, as such, do not acknowledge any common Superior. But a broader view of Law was taken by the Scholastic Jurists, who were the immediate predecessors of Grotius. Law according to them was an Ordinance of Reason promulgated for the Common Good; and if it were necessary to shew from the practice of mankind that this is not a Speculative Notion of Law, we might appeal to the foundation upon which the Ordinances (Nóμo) of Solon as distinguished from the Enactments (coμoì) of Draco rested we might further call attention to the place assigned in the system of the Civil Law of Rome to the Senatus-Consulta and the Responsa Prudentum by the side of the Edicta Magistratuum and the Placita Principum. It appears,

however, to be a well founded distinction be. tween a Rule of Law and a Rule of Morality, that whenever the sanction of a Rule of conduct is physical, in other words, whenever the Sanction is fear of injury to Person or Property, the Rule may be properly classed under the head of Law, as distinguished from Morality, the Sanctions of which are only to be discovered in the Human Conscience.

It may be asked accordingly, what are the Physical Sanctions to the Rules which regulate the Intercourse of Nations? It was one of the main objects of the system of Grotius to supply an answer to this Question. The Right of War, purum piumque duellum according to the formula of the Roman Fecials, furnishes the Principle. "War," said the great Athenian Orator in the declining days of Athens, "is the mode of proceeding against those who cannot be restrained by a Judicial Proceeding; for Judicial Proceedings are of force against those who are sensible of their inability to oppose them, but against those who are or think them