Tribunal is to be guided is the law of nations; and the sources to which we are to look for that law upon any question which may arise are these:

First. The actual practice and usages of nations. These are to be learned from history in the modes in which their relations and intercourse with one another are conducted; in the acts commonly done by them without objection from other nations; in the treaties which they make with each other, although these are to be viewed with circumspection as being based often upon temporary and shifting considerations, and sometimes exacted by the more powerful from the weaker states; and in their diplomatic correspondence with each other, in which supposed principles of the law of nations are invoked and acceded to.

Second. The judgments of the courts which profess to declare and administer the law of nations, such as prize courts and, in some instances, courts of admiralty, furnish another means of instruction.

Third. Where the above mentioned sources fail to furnish any rule resort is to be had to the great source from which all law flows, the dictates of right reason, natural justice; in other words, the law of nature.

Fourth. And in ascertaining what the law of nature is upon any particular question, the municipal law of States, so far as it speaks with a concurring voice, is a prime fountain of knowledge. This is for the reason that that law involves the law of nature in nearly every conceivable way in which it speaks, and has been so assiduously cultivated by the study of ages that few questions concerning right and justice. among men or nations can be found for which it does not furnish a solution.

Fifth. And, finally, in all cases, the concurring authority of jurists of established reputation who have made the law of nature and nations a study is entitled to respect.

Mr. Chief Justice Marshall has expressed from the bench of the Supreme Court of the United States what we conceive to be the true rule. He says:

The law of nations is the great source from which we derive those rules respecting belligerent and neutral rights which are recognized by all civilized and commercial states throughout Europe and America. This law is in part unwritten, and in part conventional. To ascertain that which is unwritten we recur to the great principles of reason and justice; but as these principles will be differently understood by dif ferent nations under different circumstances, we consider them as being, in some degree, rendered fixed and stable by a series of judicial decisions. The decisions of the courts of every country, so far as they are founded upon a law common to every country, will be received

not as authority, but with respect. The decisions of the courts of every country show how the law of nations, in the given case, is understood in that country, and will be considered in adopting the rule which is to prevail in this.'

1 Sixty Hogsheads of Sugar v. Boyle, 9 Cranch, 191, 197.

JAMES C. CARTER.

The views stated in the text concerning the foundation of the law of nations and the sources from which it is to be gathered, are, it is believed, supported by the concurrent voices of writers of established authority. Differences will be found in the modes of statement; but there seems to be no substantial disagreement. A collection of extracts from many writers of different nations will be found in the Appendix immediately following.

APPENDIX TO PART FIRST (MR. CARTER'S ARGUMENT).

CITATIONS FROM WRITERS UPON THE LAW OF NATURE AND NATIONS, SHOWING THE FOUNDATION OF INTERNATIONAL LAW, ITS RELATIONS TO THE LAW OF NATURE, AND THE SOURCES FROM WHICH THE KNOWLEDGE OF IT IS TO BE DERIVED.

[POMEROY. Lectures on International Law, ed., 1886., ch. I, secs. 29, 30, 31, 33, pages 23-26.]

SEC. 29. (2) A large number of rules which govern the mutual relations of states in their corporate capacity are properly called international law, on account of the objects which they subserve and the rights and duties they create. They are also properly law, because they have been established by particular states as a part of their own municipal systems, and are enforced by their judiciary and executive in the same manner as other portions of the local codes. They are in fact principles of the law of nature or morality put in the form of human commands, and clothed with a human sanction.

(3) What is called international law in its general sense, I would term international morality. It consists of those rules founded upon justice and equity, and deduced by right reason, according to which independent states are accustomed to regulate their mutual intercourse, and to which they conform their mutual relations. These rules have no binding force in themselves as law; but states are more and more impelled to observe them by a déference to the general public opinion of Christendom, by a conviction that they are right in themselves, or at least expedient, or by a fear of provoking hostilities. This moral sanction is so strong and is so constantly increasing in its power and effect, that we may with propriety say these rules create rights and corresponding duties which belong to and devolve upon independent states in their corporate political capacities.

Sec. 30. We thus reach the conclusion that a large portion of international law is rather a branch of ethics than of positive human jurisprudence. This fact, however, affords no ground for the jurist or the student of jurisprudence to neglect the science. Indeed, there is the greater advantage in its study. Its rules are based upon abstract justice; they are in conformity with the deductions of right reason; having no positive human sanction they appeal to a higher sanction than do the precepts of municipal codes. All these features clothe them with a nobler character than that of the ordinary civil jurisprudence, as God's law is more perfect than human legislation.

SEC. 31. The preceding analysis of the nature and characteristics of international law enables us to answer the general question, What are its sources? If we confine our attention to that portion which is in every sense of the term strictly international, and is therefore, as we have seen, morality rather than law, these sources are plainly seen to be: (1) The Divine law; (2) Enlightened reason acting upon the ab stract principles of ethics; and (3) The consent of nations in adopting the particular rules thus drawn from the generalities of the moral law

by the aid of right reason. It is only with this portion of international law that we need now concern ourselves. That other portion which I have already described as international only in its objects, and strictly national and municipal in its creation and sanctions, springs from the same sources whence all of the internal law of a particular State arisesfrom legislatures and the decisions of courts. We will then briefly consider these principal sources, or, if I may use the expression, fountains from which flow the streams of the jus inter gentes.

SEC. 33. (2) Reason. But the precepts of the moral law, either as contained in the written word, or as felt in the consciousness of the human race, are statements of broad, general principles; they are the germs, the fructifying powers; they must be developed, must be cast in a more practical and dogmatic form to meet the countless demands of each individual, and of the societies we call nations. To this end we must appeal to reason; and hence the second source which I have mentioned, namely, enlightened reason acting upon the abstract principles of morality. I can not now stop to illustrate this proposition; we shall meet many pertinent examples in the course of our investigations. I wish now, however, to dwell upon one fact of great importance-a fact which will help you to avoid many difficulties, to reconcile many discrepancies, to solve many uncertaincies. This fact is, that an international law is mainly based upon the general principles of pure morality, and as its particular rules are mainly drawn therefrom, or are intended to be drawn therefrom, by reason, it is, as a science, the most progressive of any department of jurisprudence or legislation. The improvement of civilized nations in culture and refinement, the more complete understanding of rights and duties, the growing appreciation of the truth that what is right is also expedient, have told, and still do tell, upon it with sudden and surprising effect.

The result is that doctrines which were universally received a generation since are as universally rejected now; that precedents which were universally considered as binding a quarter of a century ago would at the present be passed by as without force, as acts which could not endure the light of more modern investigation. More particularly is this true in respect to the rules which define the rights of belligerents and neutrals. The latest works of European jurists are, as we shall see, conceived in a far different spirit from standard treatises of the former generation. It was the entire ignoring or forgetfulness of this evident and most benign fact by Mr. Senator Sumner, in the celebrated and elaborate speech which he delivered a few years since upon the international policy of England, that rendered the speech utterly useless as an argument, exposed it to the criticism of European jurists, and left it only a monument of unnecessary labor in raking up old precedents from history, which no civilized nation of our own day would quote or rely upon.

The Roman law, that wonderful result of reason working upon a basis of abstract right, is largely appealed to in international discussions, as containing rules which, at least by analogy, may serve to settle international disputes. No one can be an accomplished diplomatist without a familiar acquaintance with much of this immortal code.

[Phillimore. International law, 1871, ch. II, pages 14-28.]

XIX. jurisprudence?" *

What are in fact the fountains of international

XX. Grotius enumerates these sources as being "ipsa natura, leges divinæ, mores, et pacta."

In 1753 the British Government made an answer to a memorial of the Prussian Government which was termed by Montesquieu réponse sans réplique, and which has been generally recognized as one of the ablest expositions of international law ever embodied in a state paper. In this memorable document "The Law of Nations" is said to be founded upon justice, equity, convenience, and the reason of the thing and confirmed by long usage.

XXI. These two statements may be said to embrace the substance of all that can be said on this subject.

XXII. Moral persons are governed partly by Divine law,

which includes natural law-partly, by positive instituted human law.

*

States, it has been said, are reciprocally recognized as moral persons. States are therefore governed, in their mutual relations, partly by Divine and partly by positive law. Divine law is either (1) that which is written by the finger of God on the heart of man, when it is called natural law; or (2) that which has been miraculously made known to him. *

XXIII. The primary source, then, of international jurisprudence is Divine law.

XXVI. Cicero maintains that God has given to all men conscience and intellect; that where these exist, a law exists, of which all men are common subjects. Where there is a common law, he argues, there is a common right, binding more closely and visibly upon the members of each separate state, but so knitting together the universe, "ut jam universus hic mundus una civitas sit, communis Deorum atque hominum existimanda."

That law, this great jurist says, is immortal and unalterable by prince or people.

*

years written

XXXI. This would be called by many who have of late on the science, international morality; they would restrict the term law absolutely and entirely to the treaties, the customs, and the practice of nations.

If this were a mere question as to the theoretical arrangement of the subject of international law, it would be of but little importance. But it is of great practical importance to mark the subordination of the law derived from the consent of states to the law derived from God.

XXXII. * Another practical consequence is that the law derived from the consent of Christian states is restricted in its operation by the divine law; and just as it is not morally competent to any individual state to make laws which are at variance with the law of God, whether natural or revealed, so neither is it morally competent to any assemblage of states to make treaties or adopt customs which contravene that law.

Positive law, whether national or international, being only declaratory, may add to, but can not take from, the prohibitions of divine law. "Civilis ratio civilia quidem jura corrumpere potest, naturalia non utique," is the language of Roman law; and is in harmony with the voice of international jurisprudence as uttered by Wolff: "Absit vero, ut existimes, jus gentium voluntarium ab earum voluntate ita profiscisci, ut libera sit earum in eodem condendo voluntas, et stet pro ratione sola voluntas, nulla habita ratione juris naturalis.”

XXXIII. This branch of the subject may be well concluded by the invocation of some high authorities from the jurisprudence of all countries in support of the foregoing opinion.