and humanity; that is, without doing any injury to other states, but rather by procuring their advantage, as much as in reafon can be expected. Thus the polity of fovereigns is the fame as prudence among private people; and as we condemn in the latter any art or cunning, that makes them pursue their own advantage to the prejudice of others, fo the like art would be cenfurable in princes, were they bent upon procuring the advantage of their own people by injuring other nations. The Reason of state, fo often alledged to juftify the proceedings or enterprises of princes, cannot really be admitted for this end, but inasmuch as it is reconcileable with the common intereft of nations, or which amounts to the fame thing, with the unalterable rules of fincerity, justice, and humanity.

Grotius's o

law of na

VIII. Grotius indeed acknowledges that the law Inquiry inte of nature is common to all nations; yet he esta-pinion conblishes a pofitive law of nations contradiftinct from cerning the the law of nature; and reduces this law of nations tions. to a fort of human law, which has acquired a power of obliging in confequence of the will and confent of all or of a great many nations. He adds, that the maxims of this law of nations are proved by the perpetual practice of people, and the testimony of hiftorians.

But it has been justly observed that this pretended law of nations, contradiftinct from the law of nature, and invested nevertheless with a force of obliging,

a See Grotius, Rights of war and peace: preliminary difcourfe §. 18. and book 1. chap. 1. §. 14.

03

whether

whether the people confent to it or not, is a fuppofition deftitute of all foundation 2.

For 1. all nations are with regard to one another in a natural independance and equality. If there be therefore any common law between them, it must proceed from God their common fovereign.

2. As for what relates to customs established by an exprefs or tacit confent among nations, thefe cuftoms are neither of themselves nor univerfally, noṛ always obligatory. For from this.only that feveral nations have acted towards one another for a long time after a particular manner in particular cafes, it does not follow that they have laid themselves under a neceffity of acting always in the fame manner for the time to come, and much less that other nations are obliged to conform to these customs.

3. Again; these customs are fo much the lefs capable of being an obligatory rule of themselves, as they may happen to be bad or unjuft. The profeffion of a corfair or pyrate, was by a kind of confent, efteemed a long while as lawful, between nations that were not united by alliance or treaty, It seems likewife, that fome nations allowed themfelves the ufe of poifoned arms in time of war, Shall we fay that these were cuftoms authorised by the law of nations, and really obligatory in respect to different people? Or fhall we not rather confider them as barbarous practices; practices from which every juft and well governed nation ought to refrain. We can

3.

a See Puffendorf, Law of nature and nations, book 2. chap. 23. with Barbeyrac's notes.

b

See Virgil Eneid, book 10. y. 139. with the 15th note of the Abbè des Fontaines.

not

not therefore avoid appealing always to the law of nature, the only one that is really univerfal, whenever we want to judge whether the customs established between nations have any obligatory effect.

4. All that can be faid on this fubject is, that when cuftoms of an innocent nature are introduced among nations; each of them is reasonably fuppofed to fubmit to those customs, as long as they have not made any declaration to the contrary. This is all the force or effect that can be given to received cuftoms; but a very different effect from that of a law properly fo called.

of law of

of necessity

felf; the

conventio

IX. These remarks give us room to conclude, that Two forts the whole might perhaps be reconciled by diftinguishing two fpecies of law of nations. There is cer- and obligatainly an universal, neceffary, and self-obligatory law tory by itof nations, which differs in nothing from the law of other arbinature, and is confequently immutable, infomuch trary and that the people or fovereigns cannot dispense with it, nal. even by common confent, without trangreffing their duty. There is, befides, another law of nations, which we may call arbitrary and free, as founded only on an exprefs or tacit convention; the effect of which is not by itself univerfal; being obligatory only in regard to those who have voluntarily fubmitted thereto, and only as long as they please, because they are always at liberty to change or repeal it. To which we must likewise add, that the whole force of this fort of law of nations ultimately depends on the law of nature, which commands us to be true to our engagements. Whatever really belongs to the law of nations, may be reduced to one or other of these two fpecies,

Ufe of the
foregoing

and the use of this diftinction will eafily appear by applying it to particular questions which relate either to war, for example, to ambaffadors, or to public treaties, and to the deciding of difputes which fometimes arife concerning these matters between fovereigns *.

X. 'Tis a point of importance to attend to the remarks. origin and nature of the law of nations, fuch as we have now explained them. For befide that it is al

* Let us remark here by the way, that the ideas of the ancient Roman lawyers concerning the law of nations, are not always uniform; which creates fome confufion in the law. Some there are that underftand by the LAW OF NATIONS thofe rules of right that are common to all men, and established amongst themselves pursuant to the light of reafon; in oppofition to the particular laws of each people. (See the 9th law in the Digeft. de Juftitia & Jure, book 1. tit. 1.) And then the law of nations fignified also the law of nature. Others diftinguished between these two species, as Ulpian has done in larw 1. of the title now mentioned. They gave the name of law of nations to that which agrees with man as fuch; in oppofition to that which fuits him as an animal. (See Puffendorf, Law of nature and nations, book 2. chap. 3. §. 3. note 10.) Some, in fine, comprised the one and the other under the idea of natural law. (See law XI. Digeft. de Juftitia & Jure.) And hence it comes, that the better fort of Latin writers give indifferently the name of natural law, or the law of nations, to that which relates to either. This we find in the following paffage of Cicero, where he fays, that by the law of nature, that is, by the law of nations, one man is not allowed to pursue his advantage at the expence of another. Neque vero hoc folum NATURA, id eft, JURE GENTIUM- conflitutem eft, ut non liceat fui commodi caufa, alteri nocere. De Offic. lib. 3. cap. 5. See Mr. Noodt's commentary on the Digeft, book 1. tit. 1. where this able Lawyer explains very well the ambiguity of the diftinction of natu ral law, and the law of nations, according to the different language of ancient civilians.

ways advantageous to form juft ideas of things, this is still more neceffary in matter of practice and morality. 'Tis owing perhaps to our distinguishing the law of nations from natural law, that we have infenfibly accustomed ourselves to form quite a different judgment between the actions of fovereigns and those of private people. Nothing is more ufual than to fee men condemned in common, for things which we praise or at least excufe in the perfons of princes. And yet 'tis certain, as we have already shewn, that the maxims of the law of nations have an equal authority with those of the law of nature, and are every bit as refpectable and facred, because they have God alike for their author. In fhort, there is only one fole and the fame rule of juftice for all mankind. Princes who infringe the law of nations, commit as great a crime as private people, who violate the law of nature and if there be any difference in the two cafes, it must be charged to the prince's account, whofe unjust actions are always, attended with more dreadful confequences than thofe of private people b.

a See part 1. chap. 11. §. 12.

b 'Tis Monfieur Bernard that furnishes us with these reflexions: if a private person, fays he, offends without caufe a person of the fame ftation, his action is termed an injuftice; but if a prince attacks another prince without caufe, if he invades his territories, and ravages his towns and provinces, this is called waging war, and it would be temerity to think it unjust. To break or violate contracts or agreements, is esteemed a crime among private people: but among princes, to infringe the moft folemn treaties, is prudence, is underftanding the art of government. True it is that fome pretext is always fought for, but those who trump up these pretexts, give themfelves very little trouble whether they are thought just or not, &c. Nouvelles de la republique des lettres, Mars 1704. P. 349, 341. CHA P.