Commentaries on American Law (1826-30)
Chancellor James Kent
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.”1 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 the President de Montesquieu,2 it is founded on the principle, that different nations ought to do 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.
There has been a difference of opinion among writers, concerning the foundations of the law of nations. 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 obligation 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, and sanction, from the same principles of right reason, and the same view of the nature and constitution of man, 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.3
We ought not, therefore, to separate the science of public law from that of ethics, nor encourage the dangerous suggestion, that governments are not as strictly 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. 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 relation and conduct of nations; of a collection of usages and customs, the growth of civilization and commerce; and of a code of conventional or positive law.4 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.
The law of nations, so far as it is founded on the principles of natural law, is equally binding in every age, and upon all mankind. But the Christian nations of Europe, and their descendants on this side of the Atlantic, by the vast superiority of their attainments in arts, and science, and commerce, as well as in policy and government; and, above all, by the brighter light, the more certain truths, and the more definite sanction, which Christianity has communicated to the ethical jurisprudence of the ancients, have established a law of nations peculiar to themselves. They form together a community of nations, united by religion, manners, morals, humanity, and science, and united also by the mutual advantages of commercial intercourse, by the habit of forming alliances and treaties with each other, of interchanging ambassadors, and of studying and recognizing the same writers and systems of public law.
After devoting the present lecture to a cursory view of the history of the law of nations, I shall enter upon the examination of the European and American code of international law, and endeavor to collect, with accuracy, its leading principles, and to discuss their practical details.
The law of nations, as understood by the European world, and by us, is the offspring of modern times, The most refined states among the ancients seem to have had no conception of the moral obligations of justice and humanity between nations, and there was no such thing in existence as the science of international law. They regarded strangers and enemies as nearly synonymous, and considered foreign persons and property as lawful prize. Their laws of war and peace were barbarous and deplorable. So little were mankind accustomed to regard the rights of persons or property, or to perceive the value and beauty of public order, that in the most enlightened ages of the Grecian republics, piracy was regarded as an honorable employment, There were powerful Grecian states that avowed the practice of piracy; and the fleets of Athens, the best disciplined and most respectable naval force in all antiquity, were exceedingly addicted to piratical excursions. It was the received opinion, that Greeks were bound to no duties, nor by any moral law, without compact, and that prisoners taken in war had no rights, and might lawfully be put to death, or sold into perpetual slavery, with their wives and children.5
There were, however, many feeble efforts, and some successful examples, to be met with in Grecian history in favor of national justice. The object of the Amphictyonic Council was to institute a law of nations among the Greeks, and to check violence and settle contests between Grecian states by a pacific adjustment. It was also a law of nations among them, and one which was very religiously observed, to allow to the vanquished the privilege of burying their own dead, end to grant the requisite truce for that purpose. Some of the states had public ministers resident at the courts of others,6 and there were some distinguished instances of great humanity shown to prisoners of war. During a cessation of arms in the course of the Peloponnesian war, Athens and Sparta agreed to an exchange or mutual surrender of prisoners.7 The sound judgment and profound reflections of Aristotle, naturally raised his sense of right above the atrocious maxims and practices of his age, and he perceived the injustice of that doctrine of Grecian policy, that, by the laws of war, the vanquished became the absolute property of the victor. Wise men,” he observed, “entertained different opinions upon that subject. Some considered superiority as a proof of virtue, because it is its natural effect, and they asserted it to be just that the victors should be masters of the vanquished; whilst others denied the force of the argument, and maintained that nothing could be truly just which was inconsistent with humanity.”8 He then proceeded to weaken by argument the false foundations on which the law of slavery, by means of capture in war, was established; and though he does not write on the subject very distinctly or forcibly, it seems to be quite apparent that his convictions were on that side.
The Romans exhibited much stronger proofs than the Greeks of the influence of regular law, and there was a marked difference between those nations in their intercourse with foreign powers. It was a principle of the Roman government, that none but a sworn soldier could lawfully fight the enemy; and in many instances the Romans showed that they excelled the Greeks, by the possession of a sterner and better sense of justice. The institution of a college of heralds, and the fecial law, were proofs of a people considerably advanced in the cultivation of the law of nations as a science; and yet with what little attention they were accustomed to listen to the voice of justice and humanity, appears but too plainly from their haughty triumphs, their cunning interpretation of treaties, their continual violation of justice, their cruel rules of war, and the whole series of their wonderful successes, in the steady progress of the conquest of the world. The perusal of Livy’s magnificent History of the rise and progress of the Roman power, excites our constant admiration of the vigor, the skill, the valor, and the fortitude of the Roman people; yet, not withstanding the splendor of the story, and the attractive simplicity of the writer, no reader of taste and principle can well avoid feeling a thorough detestation of the fierce spirit of conquest which it displays, and of the barbarous international law and customs of the ancients.
A purer system of public morals was cultivated, and insensibly gained ground, in the Roman state. The cruelties of Marius in the Jugurthan war, when he put part of the inhabitants of a Numidian town to the sword, and sold the rest for slaves, were declared by Sallust9 to be a proceeding contra jus belli. At the zenith of the Roman power, the enlarged and philosophical mind of Cicero was struck with extreme disgust, at the excesses in which his countrymen indulged their military spirit He justly discerned that mankind were not intended, by the law and constitution of their nature, as rational and social beings, to live in eternal enmity with each other; and he recommends, in one of the most beautiful and perfect ethical codes to be met with among the remains of the ancients, the virtues of humanity, liberality, and justice, towards other people, as being founded in the universal law of nature. Their ancestors, he observed, considered that man as an enemy whom they regarded merely as a foreigner, and to deny to strangers the use and protection of the city, would be inhuman. To overturn justice by plundering others, tended to destroy civil society, as well as violate the law of nature, and the institutions of Heaven; and by some of the most happy illustrations, and pathetic examples, Cicero vindicated the truth, and inculcated the value of the precept, that nothing was truly useful which was not honest.10 In the latter ages of the Roman empire, when their municipal law became highly cultivated, and adorned by philosophy and science, the law of nations was recognized as part of the natural reason of mankind. Quod vero naturalis ratio inter omnes homines constituit, id apud omnes gentes peroeque custoditur, vocatur que jus gentium, quasi quo jure omnes gentes utantur.11 The Roman law was destined to attain the honorable distinction of becoming a national guide to future ages, and to be appealed to by modern tribunals and writers, in cases in which usage and positive law were silent, as one authoritative evidence of the decisions of the law of nations.
It must be admitted, however, that the sages from whose works the pandects were compiled, speak very indistinctly and imperfectly on the subject of national law. They must be read with much discrimination, as Grotius observed,12 for they often call that the law of nations which prevailed, and perhaps by casual consent, among some nations only, and many things which belonged to the law of nations they treated indiscriminately with matters of mere municipal law. The Roman jurisprudence, in its most cultivated state, was a very imperfect transcript of the precepts of natural justice, on the subject of national duty. It retained strong traces of ancient rudeness, from the want of the Christian system of morals, and the civilizing restraints of commerce. We find the barbarous doctrine still asserted, that prisoners of war became slaves jure gentium,13 and even in respect to foreign nations with whom the Romans were at peace, but had no particular alliance, it is laid down in the Digest, that whoever passed from one country to the other became immediately a slave. Nam si cum gente aliqua neque amicitiam, neque hospitium, neque foedus amicitia causa factum habemus: hi hostes quidem non sunt. Quod autem eo nostro ad eos pervenit, illorum fit: et liber homo noster ab eis captus, servus fit, et eorum. Idemque si ab illis ad nos aliquid perveniat.14 It is impossible to conceive of a rule of national law more directly calculated to destroy all commercial intercourse, and to maintain eternal enmity between nations.
The irruption of the northern tribes of Scythia and Germany, overturned all that was gained by the Roman law, annihilated every restraint, and all sense of national obligation, and civil society relapsed into the violence and confusion of the barbarous ages. Mankind seemed to be doomed to live once more in constant distrust or hostility, and to regard a stranger and an enemy as almost the same. Piracy, rapine, and ferocious warfare, deformed the annals of Europe. The manners of nations were barbarous, and their maxims of war cruel. Slavery was considered as a lawful consequence of captivity. Mr. Barrington15 has cited the laws of the Visigoths, Saxons, Sicilians, and Bavarians, as restraining, by the severest penalties, the plunder of shipwrecked goods, and the abuse of shipwrecked seamen, and as extending the rights of hospitality to strangers. But, notwithstanding a few efforts of this kind to introduce order and justice, and though municipal law had undergone great improvement, the law of nations remained in the rudest and most uncultivated state, down to the period of the 16th century. In many instances, shipwrecked strangers were made prisoners, and sold as slaves, without exciting any complaint, or offending any public sense of justice. Numerous cases occurred of acts of the grossest perfidy and cruelty towards strangers and enemies. Prisoners were put to death for their gallantry and brave defense in war. There was no reliance upon the word and honor of men in power. Reprisals and private war were in constant activity. Instances were frequent of the violation of embassies, of the murder of hostages, the imprisonment of guests, and the killing of heralds. The victor in war had his option in dealing with his prisoners, either to put them to death, or reduce them to slavery, or exact an exorbitant ransom for their deliverance. So late as the time of Cardinal Richelieu, it was held to be the right of all nations to arrest strangers who came into the country without a safe conduct.16
The Emperor Charlemagne made distinguished efforts to improve the condition of Europe, by the introduction of order, and the propagation of Christianity; and we have cheering examples, during the darkness of the middle ages. of some recognition of public law, by means of alliances, and the submission of disputes to the arbitrament of a neutral power. Mr. Ward17 enumerates five institutions, existing about the period of the eleventh century, which made a deep impression upon Europe, and contributed in a very essential degree to improve the law of nations. These institutions were, the feudal system, the concurrence of Europe in one form of religious worship and government, the establishment of chivalry, the negotiations and treaties forming the conventional law of Europe, and the settlement of a scale of political rank and precedency.
Of all these causes of reformation, the most weight is to be attributed to the intimate alliance of the great powers as one Christian community. The influence of Christianity was very efficient towards the introduction of a better and more enlightened sense of right and justice among the governments of Europe. It taught the duty of benevolence to strangers, of humanity to the vanquished, of the obligation of good faith, and of the sin of murder, revenge, and rapacity. The history of Europe, during the early periods of modern history, abounds with interesting and strong cases, to show the authority of the church over turbulent princes and fierce warriors, and the effect of that authority in meliorating manners, checking violence, and introducing a system of morals which inculcated peace, moderation, and justice. The church had its councils or convocations of the clergy, which formed the nations professing Christianity into a connection resembling a federal alliance; and those councils sometimes settled the titles and claims of princes, and regulated the temporal affairs of the Christian powers. The confederacy of the Christian nations was bound together by a sense of common duty and interest, in respect to the rest of mankind. It became a general principle of belief and action, that it was not only a right, but a duty to reduce to obedience, for the sake of conversion, every people who professed a religious faith different from their own. To make war upon infidels was, for many ages, a conspicuous part of European public law; and this gross perversion of the doctrines and spirit of Christianity had at least one propitious effect upon the Christian powers, inasmuch as it led to the cultivation of peace and union between them, and to a more free and civilized intercourse. The notion that it was lawful to invade and subdue Mohammedan and Pagan countries, continued very long to sway the minds of men; and it was not until after the age of Grotius and Bacon, that this error was entirely eradicated. Lord Coke18 held, that an alliance for mutual defense was unlawful between Christians and Turks; and Grotius was very cautious as to the Admission of the lawfulness of alliances with infidels, and he had no doubt that all Christian nations were bound to assist one another against the attacks of infidels.19 Even Lord Bacon20 thought it a matter of so much doubt, as to propound it seriously as a question, whether a war with infidels was not first in order of dignity, and to be preferred to all other just temporal quarrels; and whether a war with infidels might not be undertaken merely for the propagation of the Christian faith, without other cause of hostility.
The influence of chivalry had a very beneficial effect upon the laws of war. It introduced declarations of war by heralds; and to attack an enemy by surprise was deemed cowardly and dishonorable. It dictated humane treatment to the vanquished, courtesy to enemies, and the virtues of fidelity, honor, and magnanimity in every species of warfare.
The introduction and study of the civil law must also have contributed largely to more correct and liberal views of the rights and duties of nations. It was impossible that such a refined and wise system of municipal and ethical jurisprudence as the Roman law, could have been taught in universities and schools, and illustrated by a succession of eminent civilians, who were worthy of being associated with the Roman sages, without at the same time producing a great effect upon the public mind. The very existence of such a grand monument of the embodied wisdom of the ancients, when once it became to be known and examined, must have shed a broad stream of light upon the feudal institutions, and the public councils of the European nations. We accordingly find that the rules of the civil law came to be applied to the government of national rights, and they have contributed very materially to the erection of the modern international law of Europe. From the 13th to the 16th century, all controversies between nations were adjudged by the rules of the civil law.
The influence of treaties, conventions, and commercial associations, had a still more direct and visible influence in the formation of the great modern code of public law. They gave a new character to the law of nations, and rendered it more and more of a positive or instituted code. Commercial ordinances and conventions contributed greatly to improve and refine public law, and the intercourse of nations, by protecting the persons and property of merchants in cases of shipwreck, and against piracy, and against seizure, and arrest upon the breaking out of war. Auxiliary treaties were tolerated, by which one nation was allowed to be an enemy to a certain extent only. Thus, if, in time of peace, a defensive treaty had been made between one of the parties to a subsequent war, and a third power, by which a certain number of troops were to be furnished in case of war, a compliance with this engagement implicated the auxiliary as a party to the war, only so far as her contingent was concerned. The nations of Europe had advanced to this extent in diplomatic science as early as the beginning of the 13th century, and such a refinement was totally unknown to the ancients. Treaties of subsidy showed also the progress of the law of nations. The troops of one nation, to a definite extent, could be hired for the service of one of the belligerents, without affording ground for hostility with the community which supplied the specific aid. The rights of commerce began to be regarded as under the protection of the law of nations, and Queen Elizabeth complained of the Spaniards, that they had prohibited commerce in the Indian seas contrary to that law.
The efforts that were made, upon the revival of commerce, to suppress piracy, and protect shipwrecked property, show a returning sense of the value, and of the obligations of national justice. The case of shipwrecks may be cited, and dwelt upon for a moment, as a particular and strong instance of the feeble beginnings, the slow and interrupted progress, and final and triumphant success, of the principles of public right. Valin21 imputes the barbarous custom of plundering shipwrecked property, not merely to the ordinary cupidity for gain, but to a more particular and peculiar cause. The earliest navigators were almost all pirates, and the inhabitants of the coasts were constantly armed against their depredations, and whenever they had the misfortune to be shipwrecked, they were pursued with a vindictive spirit, and deemed just objects of punishment. The practice of plundering shipwrecks has been traced to the Rhodians, and from them it passed to the Romans; and the efforts to restrain it were very feeble and gradual, and mixed with much positive injustice. The goods cast ashore first belonged to the unfortunate occupant, and then they were considered as belonging to the state. This change from private to public appropriation of the property, rendered a returning sense of right and duty more natural and easy. The Emperors Hadrian and Antoninus had the honor of having first renounced the claim to shipwrecked property, in favor of the rightful owner. But the inhuman customs on this subject were too deeply rooted to be eradicated by the wisdom and vigilance of the Roman lawgivers. The laws in favor of the unfortunate were disregarded by succeeding emperors, and when the empire itself was overturned by the northern barbarians, the laws of humanity on this subject were swept away in the tempest, and the continual depredations of the Saxons and Normans, induced the inhabitants of the western coasts of Europe, to treat all navigators who were thrown by the perils of the sea upon their shores, as pirates, and to punish them as such, without inquiry or discrimination.
The Emperor Andronicus Comnenus, who reigned at Constantinople in 1183, made great efforts to repress this inhuman practice, His edict was worthy of the highest praise, but it ceased to be put in execution after his death. Pillage had become an inveterate moral pestilence. It required something more effectual than papal bulls, and the excommunication of the church, to stop the evil. The revival of commerce, and with it a sense of the value of order, commercial ordinances, and particular conventions and treaties between sovereigns, contributed gradually to suppress this criminal practice, by rendering the regulations on that subject a branch of the public law of nations. Valin says, it was reserved to the ordinances of Lewis XIV to put the finishing stroke towards the extinction of this species of piracy, by declaring that shipwrecked persons and property were placed under the special protection and safe-guard of the crown; and the punishment of death, without hope of pardon, was pronounced against the guilty.
The progress of moderation and humanity in the treatment of prisoners, is to be imputed to the influence of conventional law, establishing a general and indiscriminate exchange of prisoners, rank for rank, and giving protection to cartel ships for that purpose. It is a practice of no very ancient introduction among the states of Europe, and it was not of very familiar use in the age of Grotius, and it succeeded the elder practice of ransom. From the extracts which Dr. Robinson22 gives from Bellus, who was a judge or assessor in the armies of Charles V and Philip II, he concludes, that no practice so general, and so favorable to the conduct of prisoners, as a public exchange in time of war, was known in the 16th century. The private interest of the captor in his prisoner, continued through that period; and the practice of ransom, founded on the right of property claimed by the captor, succeeded to the Greek and Roman practice of killing prisoners, or selling them as slaves.
The custom of admitting resident ministers at each sovereign’s court, was another important improvement in the security and facility of national intercourse; and this led to the settlement of a great question, which was very frequently discussed in the 15th and 16th centuries, concerning the inviolability of ambassadors. It. came at last to be a definitive principle of public law, that ambassadors were exempted from all local jurisdiction, civil and criminal; though Lord Coke considered the law in his day to be, that if an ambassador committed any crime which was not merely malum prohibitum, he lost his privilege and dignity as an ambassador, and might be punished as any other private alien, and that he was even bound to answer civilly for his contracts that were good jure gentium.23
Thus stood the law of nations at the age of Grotius. It had been rescued, to a very considerable extent, from the cruel usages and practices of the northern barbarians. It had been restored to some degree of science and civility by the influence of Christianity, the study of the Roman law, and the spirit of commerce. It had grown greatly in value and efficacy, from the intimate connection and constant intercourse of the modern nations of Europe, who were derived from a common origin, and were governed by similar institutions, manners, laws, and religion. But it was still in a state of extreme disorder, and its principles were little known, and less observed. It consisted of a series of undigested precedents, without order or authority. Grotius has, therefore, been justly considered as the father of the law of nations; and he arose like a splendid luminary, dispelling darkness and confusion, and imparting light and security, to the intercourse of nations. It is said by Barbeyrac,24 that Lord Bacon’s works first suggested to Grotius the idea of reducing the law of nations to the certainty and precision of a regular science. Grotius has himself fully explained the reasons which led him to undertake his necessary, and most useful, and important work.25 He found the sentiment universally prevalent, not only among the vulgar, but among men of reputed wisdom and learning, that war was a stranger to all justice, and that no commonwealth could be governed without injustice. The saying of Euphemus in Thucydides, he perceived to be in almost every one’s mouth, that nothing which was useful was unjust. Many persons, who were friends to justice in private life, made no account of it in a whole nation, and did not consider it as applicable to rulers. He perceived a horrible licentiousness and cruelty in war, throughout the Christian world, of which barbarians might be ashamed. When men took up arms, there was no longer any reverence for law either human or divine, and it seemed as if some malignant fury was sent forth into the world, with a general license for the commission of all manner of wickedness and crime.26
The object of Grotius was to correct these false theories and pernicious maxims, by showing a community of sentiment among the wise and learned of all nations and ages, in favor of the natural law of morality. He likewise undertook to show that justice was of perpetual obligation, and essential to the well being of every society, and that the great commonwealth of nations stood in need of law, and the observance of faith, and the practice of justice. His object was to digest, in one systematic code, the principles of public right, and to supply authorities for almost every case in the conduct of nations; and he had the honor of reducing the law of nations to a system, and of producing a work which has been resorted to as the standard of authority in every succeeding age. The more it is studied, the more will our admiration be excited at the consummate execution of the plan, and the genius and erudition of the author. There was no system of the kind extant, that had been produced by the ancient philosophers of Greece, or by the primitive Christians. The work of Aristotle on the rights of war, and the writings of the Romans on their fecial law, had not survived the wreck of ancient literature; and the treaties of some learned moderns on public law, were most imperfect, and exceedingly defective in illustrations from history, and in omitting to place their decisions upon the true foundations of equity and justice.27 Grotius, therefore, went purposely into the details of history and the usages of nations, and he resorted to the testimony of philosophers, historians, orators, poets, civilians, and divines, because they were the materials out of which the science of morality was formed; and when many men, at different times and places, unanimously affirmed the same thing for truth, it ought to be ascribed to some universal cause. His unsparing citation of authorities, in support of what the present age may consider very plain and undisputed truths, has been censured by many persons as detracting from the value of the work. On the other hand, the support that he gave to those truths, by the concurrent testimony of all nations and ages, has been justly supposed to contribute to that reverence for the principles of international justice, which has since distinguished the European nations.
Among the disciples of Grotius, Pufendorf has always held the first rank. His work went more at large into the principles of natural law, and combined the science of ethics with what may be more strictly called the law of nations. It is copious in detail, but of very little practical value in teaching us what the law of nations is at this day. It is rather a treatise on moral philosophy than on international law; and the same thing may be said of the works of Wolfius, Burlamaqui, and Rutherforth. The Summary of the Law of Nations, by Professor Martens, is a treatise of greater practical utility, but it is only a very partial view of the system, being confined to the customary and conventional law of the modern nations of Europe. Bynkershoek’s treatise on the law of war has always been received as of great authority, on that particular branch of the science of the law of nations, and the subject is ably and copiously discussed. The work is replete with practical illustration, though too exclusive in its references to the ordinances of his own country, to render his authority very unquestionable. The most popular, and the most elegant writer on the law of nations, is Vattel, whose method has been greatly admired. He has been cited, for the last half century, more freely than any one of the public jurists; but he is very deficient in philosophical precision. His topics are loosely, and often tediously and diffusively discussed, and he is not sufficiently supported by the authority of precedents, which constitute the foundation of the positive law of nations. There is no work which combines, in just proportions, and with entire satisfaction, an accurate and comprehensive view of the necessary and of the instituted law of nations, and in which principles are sufficiently supported by argument, authority, and examples. Since the age of Grotius, the code of war has been vastly enlarged and improved, and its rights better defined, and its severities greatly mitigated. The rights of maritime capture, the principles of the law of prize, and the duties and privileges of neutrals, have grown into very important titles in the system of national law.
We now appeal to more accurate, more authentic, more precise, and more commanding evidence of the rules of public law, by a reference to the decisions of those tribunals, to whom, in every country, the administration of that branch of jurisprudence is specially entrusted. We likewise appeal to the official documents and ordinances of particular states, which have professed to reduce into a systematic code, for the direction of their own tribunals, and for the information of foreign powers, the law of nations, on those points which relate particularly to the rights of commerce, and the duties of neutrality. But in the absence of higher and more authoritative sanctions, the ordinances of foreign states, the opinions of eminent statesmen, and the writings of distinguished jurists, are regarded as of great consideration on questions not settled by conventional law. In cases where the principal jurists agree, the presumption will be very great in favor of the solidity of their maxims; and no civilized nation, that does not arrogantly set all ordinary law and justice at defiance, will venture to disregard the uniform sense of the established writers on international law. England and the United States have been equally disposed to acknowledge the authority of the works of jurists, writing professedly on public law; and the binding force of the general usage and practice of nations, and the still greater respect due to judicial decisions recognizing and enforcing the law of nations. In all our foreign negotiations, and domestic discussions of questions of national law, we have paid the most implicit respect to the practice of Europe, and the opinions of her most distinguished civilians. In England, the report made in 1753, to the king, in answer to the Prussian memorial, is very satisfactory evidence of the obedience shown to the great standing authorities on the law of nations, to which I have alluded. And in a case which came before Lord Mansfield, in 1764, in the K. B.28 he referred to a decision of Lord Talbot, who bad declared that the law of nations was to be collected from the practice of different nations, and the authority of writers; and who had argued from such authorities as Grotius, Barbeyrac, Bynkershoek, Wiquefort, etc. in a case where British authority was silent. The most celebrated collections and codes of maritime law, such as the Consolato del mare, the laws of Oleron, the laws of the Hanseatic league, and, above all, the marine ordinances of Lewis XIV, are also referred to, as containing the most authentic evidence of the immemorial and customary law of Europe.
The dignity and importance of this branch of jurisprudence, cannot fail to recommend it to the deep attention of the student; and a thorough: knowledge of its principles is necessary to lawyers and statesmen, and highly ornamental to every scholar, who wishes to be adorned with the accomplishments of various learning. Many questions arise in the course of commercial transactions, which require for their solution an accurate acquaintance with the conventional law of Europe, and the general doctrines of the prize tribunals. Though we may remain in peace, there is always war raging in some part of the globe, and we have at the present moment29 neutral rights to exact, and neutral duties to perform, in the course of our Mediterranean trade, and in the trade to the Brazils, and along the shores of the Pacific. A comprehensive and scientific knowledge of international law is highly necessary, not only to lawyers practicing in our commercial ports, but to every gentleman who is animated by liberal views, and a generous ambition to assume stations of high public trust. It would be exceedingly to the discredit of any person who should he called to take a share in the councils of the nation, if he should be found deficient in all the great leading principles of this law; and I think I cannot be mistaken in considering the elementary learning of the law of nations, as not only an essential part of the education of an American lawyer, but as proper to be academically taught. My object, therefore, in some succeeding lectures, will be to discuss all the leading points arising upon the rights and duties of nations, in the several relations of peace, of war, and of neutrality.
1. Ordinance of the 4th December, 1781, relative to Maritime captures; Journals of Congress, vol. vii. 125.
2. L’Esprit des Loix, b. 1. c. 3.
3. Vattel, Prelim. sec. 7.
4. 2 Mason, 443. Story, J.
5. Mitford’s History of Greece, 8 vo. edit. vol ii. 352. vol. vi. 107. 135. et passim. Ward’s Enquiry into the History of the Law of Nations, vol. i. 177-183. Goguet’s Origine des Loix, etc. part ii. b. 5. Grotius b. iii. c. 7. Justin’s Hist. 1. 43. c. 3. Potter’s Antiquities of Greece, b. iii, c. l0 & 12. b. iv. c. 21.
6. Mitford’s History, vol. 5. 378-9.
7. Thucyd. l. 5. c. 18.
8. Gillies’ Aristotle, vol. 2. 35, 36.
9. Sal. Jug. ch. 91.
10. Off. b. 3. sec. 5, 6, 7, 11.
11. Lig. t. l. 9. Inst. 1. 2. 1.
12. Proleg. sec. 53.
13. Inst. 1, 3, 4. Dig. lib. 1. tit. 5. sec. 5. 4. lib. 49. tit. 15. ch. 12. sec. 1.
14. Dig. 49. 15. 5. 2.
15. Observations on the Statutes, chiefly the more ancient, pa. 22.
16. Ward’s History of the Law of Nations, ch. 7, 8, 9.
17. Ib. vol. i. 322-328
18. 4 Inst. 155.
19. Grotius, b. 2. c. 15. sec. 11, 12.
20. Bacon’s Works, vol. iii. 472, 492.
21. Com sur Ord. tom. 2. 579-587.
22. 3 Rob. Rep. Appendix A.
23. 4 Inst. 153.
24. Pref. To Puff. sec. 29.
25. Proleg., De. jur. Bel.
26. Proleg. sec. 2. and 28.
27. Proleg of Grot. sec. 36, 37, 38.,
28. Triquet v. Bath, 3 Burr. 1478.
29. November, 1824.