It is clear that thus in its large tures, as a rule for the conduct of pendent communities towards each other, the law of nations wants one essential feature of that which is entitled to the term law—a binding authority. Nations even the most powerful are not without checks in the fear of raising hostile binations and otherwise; but there can be no uniformity in these checks; and in general when the interest is of importance, and the nation powerful, it takes its own way. The portance of the questions which may be involved in the law of nations thus terially affects the question how far it is uniformly obeyed. In -a set of minor questions—such as the safety of the sons of ambassadors, and their exemption from responsibility to the laws of the country to which they are accredited, and in other matters of personal etiquette, a set of uniform rules has been established by the practice of all the civilized world, which are rarely infringed. But in the more important questions, regarding what is a justifiable ground for declaring war ? what territory a nation is entitled to the sovereignty of? what is a legitimate method of conducting a war once menced? &c.—the rules of the publicists are often precise enough ; but the practice of nations has been far from regular, and has been, as every reader of history knows, influenced by the relative strength of the disputing parties more than by the justice of their cause. The later writers on this subject have from this circum stance directed their attention more to the means by which any system of inter national law can be enforced, than to minute and abstract statements of what may be theoretical justice, but has little chance of being enforced. They have found several circumstances which have an influence in the preservation of inter. national justice, though of course no sanctions which can give it the uniformity and consistency of internal laws. The combinations for the preservation of what is called the Balance of Power LBALANCE OF POWER] are among the most useful restrictions of ambition. All periods of history furnish illustrations of this prin ciple. Hume found that the Peloponnesian war was carried on for the preservation of the balance of power against Athens. The late war exhibited a noted illustra tion of combination to prevent universal conquest on the part of the French. The safety of small states from being absorbed by their larger neighbours, is in the jea lousy which these neighbours feel of each other's aggrandisement. Thus the jea lousy of rulers is one barrier to national injustice. Another is public opinion : sometimes that of the nation whose rulers would be prepared to commit injustice— sometimes that of other nations. Of course it can only be to a very limited extent that the public feeling of a despotic government can check the grasping spirit of its rulers; but the public feeling of the constitutional and democratic states is the great check on the injustice that might be perpetrated by a nation when it becomes so powerful as Great Britain.
The seizure of the Danish fleet by the English has been a subject of warm cen sure in this country. Necessity—even the plea that Napoleon would have used the fleet to invade our own shores—has not been accepted in palliation of the act ; and the manner in which it has been canvassed is very likely to prevent any British government from adopting the precedent. The partition of Poland is an instance of national injustice con demned by the public feeling of countries other than those by which it was per petrated ; and it may be questioned whe the states which accomplished the par tition may not yet suffer by it. Good fame in the community of nations is like respectability in private circles, a source of power through external support ; and the conduct of Russia towards Poland has frequently diverted from the former country the sympathy of free nations. It need scarcely be observed that the press, whether fugitive or permanent, is the most powerful organ of this public opi nion, and that the views of able historians, jurists, and moralists, have much influence in the preservation of international jus tice. Among the principal subjects of dispute in this department of interna tional law are—the sovereignty of ter ritory and the proper boundaries of states, as in the puestion lately under debate regarding the Oregon territory in North America ; questions as to discovery and first occupancy of barbarous countries ; questions as to any exclusive right to frequent certain seas,—and here there is a well-known distinction between the broad ocean and the narrow seas that lie close to particular territories ; questions regarding the right of navigation in rivers which may be either between the upper and lower territories, or between states on opposite banks ; questions as to the right of harbour or fishing, &c. ; and questions as to the right of trading with particular states. A very advantageous method of adjusting minor international disputes has been frequently had recourse to of late in a submission to the arbitra tion of a neutral power. Pride and the spirit of not yielding to intimidation or aggrandisement have often more in fluence in a nation's resistance of an other's claim, than the desire to keep what is demanded. In such a case the national
pride is not injured when that which is yielded to is the award of a neutral party, not the demand of an opponent. It has been suggested by Bentham and Mill that the civilized states of the world should establish among themselves a congress, which should adjudicate on all disputes between its members, the members being excluded from voting in their own dia. putes.
The Second department into which we have considered international law divided —the rights and obligations of indivi duals as affected by the conduct of states towards each other—has, like the first, been examined by the publicists in their theoretical manner; but it has never, per haps, received so much practical illustra tion as it did in the British courts, parti ticularly the Prize Admiralty Court, during the late wars. In a despotic coun try it would of course scarcely ever occur that the bench should fail to give effect to the national policy of the government, whatever that may be. But in England it was the rule that foreigners as well as natives were entitled to the rigid adminis tration of the law, and that, if the pro ceedings of the government were at va riance with the rights of parties according to the law of peace and war, individuals might have redress. Thus, when Great Britain, in opposition to the Berlin de crees, tried to establish a "paper block ade," that is to say, by force of orders in council to declare places to be under blockade, whether there were a force present to support it or not, Sir William Scott found that " in the very notion of a complete blockade, it is included that the besieging force can apply its power to every point in the blockaded state. If it cannot, it is no blockade of that quarter where its power cannot be brought to bear." It has frequently been observed, that as to all departments of the law of nations, uncivilized countries are at the mercy of the civilized : that not having any means of reciprocating the action of interna tional laws, from their having no sys tematic judicatories of their own, they have not even the frail tenure of gene rally received opinions as to what the conduct of independent nations towards each other ought to be, for their protec tion. This is in some measure true. If a weak civilized nation, which can elo quently appeal to the law of nations, is feebly protected against the injustice of a strong nation, still less effectually are a barbarous community, who never heard of international law, and know not how to appeal to its acknowledged principles, protected by it ; and, in regard to them, the humanity and conscience of the powerful nations coming in contact with them are their protection, rather than any rules of international law. Thus when, as in the instance of a colonial government or otherwise, such a nation as the British has to deal with the inha bitants of a barbarous country, it cannot be said that these inhabitants have the law of nations to appeal to if they are un justly treated, and there is no sanction for their being well and humanely used but the morality and conscience of the British nation and its government. How far civilized nations had in former times disregarded all feelings of common hu manity in their intercourse with inferior races, the history of colonization, and es pecially that relating to the continent of America, is a horrible record. In later days higher notions have been entertained of the responsibility of superior power, and the civilized man has in some measure ceased to make his first advances to the notice of the barbarian in the character of a murderer and a pillager. Britain has in this improved morality so far ad vanced before other nations, as to be the protector of barbarous races from the op pression of others, in her efforts for the abolition of the slave trade and the pre servation of aboriginal nations. These ef forts, in so far as they are an anomaly in the general conduct of nations, have intro duced some necessary exceptions to the rules of international law applicable to the rights of persons. This has consisted in the necessity of treating those who are injured by the slave trade, viz. the slaves carried off, as if they were subjects of this country subjected to injury, while the de porters have likewise been of necessity treated in the general case as if they were subjects of this country doing the injury. The effect of this state of matters, as an exceptional principle in international law, was lately curiously illustrated. A foreign slaver had been captured and taken pos session of. The crew rose, and putting the captors to death, recaptured the ves sel. They were tried and condemned to rl.oith for murder in an English court ; winch refused to listen to the plea that, as the capture had taken place under our laws, not their laws, they were entitled to regain possession by any means which they might choose to adopt. It was neces sary, in fact, to treat the ship as a prison, and the captured seamen as persons in a British prison. It is fortunate that the humane and enlightened motive of this divergence from the law of nations is a guarantee for its being beneficially exer cised.