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§ 5. Law
Neither Hobbes nor Puffendorf entertains the same of Nature opinion as Grotius upon the origin and obligatory force
and Law of
Nations as of the positive Law of Nations. The former, in his be identi- work, De Cive, says, "The natural law may be divided cal, by Hobbes and into the natural law of men, and the natural law of Puffendorf. States, commonly called the Law of Nations. The precepts of both are the same; but since States, when they are once instituted, assume the personal qualities of individual men, that law, which when speaking of individual men we call the Law of Nature, is called the Law of Nations when applied to whole States, nations, or people." To this opinion Puffendorf implicitly subscribes, declaring that "there is no other voluntary or positive law of nations properly invested with a true and legal force, and binding as the command of a superior power." 2
After thus denying that there is any positive or voluntary law of nations founded on the consent of nations, and distinguished from the natural law of nations, Puffendorf proceeds to qualify this opinion by admitting that the usages and comity of civilized nations have introduced certain rules, for mitigating the exercise of hostilities between them; that these rules are founded upon a general tacit consent; and that their obligation ceases by the express declaration of any party, engaged in a just war, that it will no longer be bound by them. There can be no doubt that any belligerent nation which chooses to withdraw itself from the obligation of the Law of Nations, in respect to the manner of carrying on war against another State, may do so at the risk of incurring the penalty of vindictive retaliation on the part of other nations, and of putting itself in general hostility with the civilized world. As a celebrated English civilian and magistrate (Lord Stowell) has well observed, "a great part of the law of nations stands upon the usage and practice of nations. It is introduced,
1 Præcepta utriusque eadem sunt; sed quia civitates semel institutæ inducunt proprietates hominum personales, lex quam, loquentes de hominum singulorum officio, naturalem dicimus, applicata totis civitatibus, nationibus sive gentibus, vocatur jus gentium. Hobbes, De Cive, cap. xiv. § 4.
2 Cui sententiæ et nos plane subscribimus. Nec præterea aliud jus gentium, voluntarium seu positivum dari arbitramus, quod quidem legis propriæ dicta vim habeat, quæ gentes tamquam sa superiore profecta stringat. Puffendorf, De Jure Naturæ et Gentium, lib. ii. cap. 3, § 23.
indeed, by general principles, but it travels with those general principles only to a certain extent; and if it stops there, you are not at liberty to go further, and say that mere general speculations would bear you out in a further progress; thus, for instance, on mere general principles, it is lawful to destroy your enemy; and mere general principles make no great difference as to the manner by which this is to be effected; but the conventional law of mankind, which is evidenced in their practice, does make a distinction, and allows some, and prohibits other modes of destruction; and a belligerent is bound to confine himself to those modes which the common practice of mankind has employed, and to relinquish those which the same practice has not brought within the ordinary exercise of war, however sanctioned by its principles and purposes." 1
The same remark may be made as to what Puffendorf says respecting the privileges of ambassadors, which Grotius supposes to depend upon the voluntary law of nations; whilst Puffendorf says they depend, either upon natural law which gives to public ministers a sacred and inviolable character, or upon tacit consent, as evidenced in the usage of nations, conferring upon them certain privileges which may be withheld at the pleasure of the State where they reside. The distinction here made between those privileges of ambassadors, which depend upon natural law, and those which depend upon custom and usage, is wholly groundless; since both one and the other may be disregarded by any State which chooses to incur the risk of retaliation or hostility, these being the only sanctions by which the duties of international law can be enforced.
Still it is not the less true that the law of nations, founded upon usage, considers an ambassador, duly received in another State, as exempt from the local jurisdiction by the consent of that State, which consent cannot be withdrawn without incurring the risk of retaliation, or of provoking hostilities on the part of the sovereign by whom he is delegated. The same thing may be affirmed of all the usages which constitute the Law of Nations. They may be disregarded by those who choose to declare themselves absolved from the obligation of that law, and
1 Robinson's Admiralty Rep. vol. i. p. 140.
to incur the risk of retaliation from the party specially injured by its violation, or of the general hostility of mankind.1
§6. Law of Nations de
Bynkershoek, (who wrote after Puffendorf, and before rived from Wolf and Vattel,) derives the law of nations from reason and usage (ex ratione et usu,) and founds usage on the evidence of treaties and ordinances (pacta et edicta,) with the comparison of examples frequently recurring. In treating of the rights of neutral navigation in time of war, he says, "Reason commands me to be equally friendly to two of my friends who are enemies to each other; and hence it follows that I am not to prefer either in war. Usage is shown by the constant, and, as it were, perpetual custom which sovereigns have observed of making treaties and ordinances upon this subject, for they have often made such regulations by treaties to be carried into effect in case of war, and by laws enacted after the commencement of hostilities. I have said by, as it were, a perpetual custom; because one, or perhaps two treaties, which vary from the general usage, do not alter the law of nations." 2
In treating of the question as to the competent judicature in cases affecting ambassadors, he says, "The ancient jurisconsults assert, that the law of nations is that which is observed in accordance with the light of reason, between nations, if not among all, at least certainly among the greater part, and those the most civilized. According to my opinion, we may safely follow this definition, which establishes two distinct bases of this law; namely, reason and custom. But in whatever manner we may define the law of nations, and however we may argue upon it, we must come at last to this conclusion, that what reason dictates to nations, and what nations observe between each other,
1 Wheaton's History of the Law of Nations, p. 96.
2 "Jus Gentium commune in hanc rem non aliunde licet discere, quàm ex ratione et usu. Ratio jubet ut duobus, invicem hostibus, sed mihi amicis, æque amicus sim; et inde efficitur, ne in causâ belli alterum alteri præferam. Usus intelligitur ex perpetuâ quodammodo paciscendi edicendique consuetudine; pactis enim Principes sæpe id egerunt in casu belli, sæpe etiam edictis contra quoscunque, flagrante jam bello. Dixi, ex perpetuâ quodammodo consuetudine, quia unum fortè alterumve pactum, quod a consuetudine recedit, Jus Gentium non mutat." Bynkershoek, Quæst. Jur. Pub. lib. i. cap. 10.
as a consequence of the collation of cases frequently recurring, is the only law of those who are not governed by any other- (unicum jus sit eorum, qui alio jure non reguntur.) If all men are men, that is to say, if they make use of their reason, it must counsel and command them certain things which they ought to observe as if by mutual consent, and which being afterwards established by usage, impose upon nations a reciprocal obligation; without which law, we can neither conceive of war, nor peace, nor alliances, nor embassies, nor commerce."1 Again, he says, treating the same question: "The Roman and pontifical law can hardly furnish a light to guide our steps; the entire question must be determined by reason and the usage of nations. I have alleged whatever reason can adduce for or against the question; but we must now see what usage has approved, for that must prevail, since the law of nations is thence derived." 2 In a subsequent passage of the same treatise, he says, " It is nevertheless most true, that the States General of Holland alleged, in 1651, that, according to the law of nations, an ambassador cannot be arrested, though guilty of a criminal offence; and equity requires that we should observe that rule, unless we have previously renounced it. The law of nations is only a presumption founded upon usage, and every such presumption ceases the moment the will of the party who is affected by it is expressed to the contrary. Huberus asserts that ambassadors cannot acquire or preserve their rights by prescription; but he confines this to the case of subjects who seek an asylum in the house of a foreign minister, against the will of their own sovereign. I hold the rule to be general as to every privilege of ambassadors, and that there is no one they can pretend to enjoy against the express declaration of the sovereign, because an express dissent excludes the supposition of a tacit consent, and there is no law of nations except between those who voluntarily submit to it by tacit convention." 3
The public jurists of the school of Puffendorf had con- § 7. System of sidered the science of international law as a branch of
1 De Foro Legatorum, cap. iii. § 10.
2 De Foro Legatorum, cap. vii. § 8.
the science of ethics. They had considered it as the natural law of individuals applied to regulate the conduct of independent societies of men, called States. To Wolf belongs, according to Vattel, the credit of separating the law of nations from that part of natural jurisprudence which treats of the duties of individuals.
In the preface of his great work, he says, "That since such is the condition of mankind that the strict law of nature cannot always be applied to the government of a particular community, but it becomes necessary to resort to laws of positive institution more or less varying from the natural law, so in the great society of nations it becomes necessary to establish a law of positive institution more or less varying from the natural law of nations. As the common welfare of nations requires this mutation, they are not less bound to submit to the law which flows from it than they are bound to submit to the natural law itself, and the new law thus introduced, so far as it does not conflict with the natural law, ought to be considered as the common law of all nations. This law we have deemed proper to term, with Grotius, though in a somewhat stricter sense, the voluntary Law of Nations." 1
Wolf afterwards says, that "the voluntary law of nations derives its force from the presumed consent of nations, the conventional from their express consent; and the consuetudinary from their tacit consent." 2
This presumed consent of nations (consentium gentium præsumptum) to the voluntary law of nations he derives from the fiction of a great commonwealth of nations (civitate gentium maxima) instituted by nature herself, and of which all the nations of the world are members. As each separate society of men is governed by its peculiar laws freely adopted by itself, so is the general society of nations governed by its appropriate laws freely adopted by the several members, on their entering the same. These laws he deduces from a modification of the natural law, so as to adapt it to the peculiar nature of that social union, which, according to him, makes it the duty of all nations to submit to the rules by which that union is governed, in the same
1 Wolfius, Jus Gentium, Pref. § 3.
2 Wolfius, Proleg. § 25.