OF THE LAW OF NATIONS.
I, EAc n nation being considered as a moral being liv ing in a state of nature, the obligations of one nation to wards another are no more than those of individuals modi fied and applied to nations ; and this is what is called the natural law of nations. It is universal and necessary, be cause all nations are obliged by it, and whether they will or no. The foundation of this natural, universal, and neces sary law, is the relation which a human being, as such, bears to God, to himself, and to the rest of the species. Hence writers on international law commonly begin with a statement of the obligations arising from these three rela tions, or a view of the law of nature ; and this law they ap ply as the 'tile in all questions between independent states, where 'special convention or custom is silent. For this part of the foundation of international law, we refer the reader to our articles RELIGION (Natural), and Menem. P Lo so rill% 2. But as the simple law of nature is insufficient, even in questions between individuals, and still less between na tions, when they come to have intercourse and to carry on commerce with one another, their common interest obliges them to soften the rigour of the law of nature, to render it more determinate, and to depart from that perfect equality of rights, which must ever, according to that law, be con sidered as extending itself even to the weakest. These changes take place in virtue of conventions (express or ta cit) or of simple custom. The whole of the rights and obligations thus established between two nations, form the positive law of nations between them. It is called positive, particular, or arbitrary, in opposition to the natural, univer sal, and necessary law.
3. On the example of two nations, all the nations of Eu rope might, by common consent, make treaties to regulate their different rights ; and then these general treaties would form a code, which might be called the positive law of nations. But there never yet existed such a general treaty, either between all the powers of Europe or even a majority of them. In this sense, then, there exists no po sitive law of nations, and perhaps none such ever will exist.
But on the other hand it is clear, that what has become a law between two or three, or even the majority of the pow ers of Europe, either by treaty, or from custom, can pro duce neither rights nor obligations among the rest. How ever, by comparing the treaties which the powers of Europe have made with one another, we discover certain principles, that have been almost universally adopted by the different powers that have made treaties on the same subjects. It is
similar with respect to custom—a custom received among the majority of the powers of Europe, particularly among the great powers (when it is not founded upon their parti cular constitutions) is naturally adopted by other powers, as far as it can apply to them ; and, in general, all nations give a certain degree of attention to the customs admitted by others, although it cannot be proved that they have ever been admitted by themselves. It is true, we cannot say as much of express conventions. It nevertheless of ten happens, that a treaty made with a particular power serves as a model for the treaties of the same sort to be made with other powers ; and very often what takes place in one nation, in virtue of treaty, is admitted in others as a custom : so that, in many points, the law of nations is founded on treaty in one country, and on custom in an other.
It is then the aggregate of the rights and obligations established among the nations of Europe (or the majority of them) whether by particular but uniform treaties, by tacit convention, or by custom, which forms the general positive law of nations.
4. We find some vestiges of a positive law of nation's among the ancients, particularly among the Greeks and Romans ; but it is needless for us to go back so far. The political situation of Europe is so much changed, since the fifth century in particular ; the introduction of the Chris tian religion, of the hierarchical system, and all its other important consequences; the invention of gunpowder, the discovery of America, and of the passage to the East In dies ; the ever increasing taste for pomp and luxury ; the jealous ambition of powerful states ; the multiplication of all sorts of alliances ; and the introduction of the custom of sending ambassadors in ordinary ; have had such an influ ence in forming our present law of nations, that, in gene ral, it is necessary to go no farther back than the middle centuries of the Christian era : and, indeed, on many points, no information can be obtained by going farther back than the time of Henry the Great, the peace of Westphalia, or even the beginning of the 18th century.
It is, then, in the general history of Europe during the latter centuries, and of the particular states of which it is composed, that we must look for the existing law of na tions.