KENT'S COMMENTARIES

REDUCED TO

QUESTIONS AND ANSWERS.

LECTURE I.

OF THE FOUNDATION AND HISTORY OF THE LAW OF NATIONS.

1. When the United States assumed the character of an inde pendent nation, to what system of public law did they submit themselves ?-1

They became subject to that system of rules which reason, morality, and custom, had established among the civilized nations of Europe, as their public law. They claimed cognizance of all matters arising upon the law of nations, and they professed obedience to that law," according to the general usages of Europe."*

2. What are we to understand by the law of nations ?—1.

That code of public instruction, which defines the rights and prescribes the duties of nations, in their intercourse with each other.

3. Upon what, according to Montesquieu, is the law of nations founded?-1.

It is founded on the principle, that different nations ought

* See Journals of Congress, Vol. vii. 185. The English judges have frequently declared that the law of nations was part of the Common Law of England; and it is well settled that the Common Law, so far as it may be consistent with the Constitutions of this country, and remains unaltered by statute, is an essential part of American juris. prudence.

to do each other as much good in peace, and as little harm in war, as possible, without injury to their true interests.

4. How have writers differed concerning the foundation of the law of nations ?—2.

It has been considered by some as a mere system of positive institutions, founded upon consent and usage; while others have insisted that it was essentially the same as the law of nature," applied to the conduct of nations, in the character of moral persons, susceptible of obligations and laws.

5. What is the most useful and practical part of the law of nations ?-2.

Instituted or positive law, founded on usage, consent, or agreement.

6. Is it proper to separate this instituted or positive law of nations from natural jurisprudence?—2.

It would be improper to separate that law entirely from natural jurisprudence, and not to consider it as deriving much of its force and dignity, from the same principles of right reason, the same views of the constitution and nature of man, and the same sanction of Divine revelation, as those from which the science of morality is deduced.

7. Is there then a natural, as well as a positive law of nations ?—2. There is.

8. How far are states, in their relations with other states, bound by this natural law of nations?—2.

By it, every state, in its relations with other states, is bound to conduct itself with justice, good faith and benevolence.

9. How is this application of the law of nature called ?—2.

By Vattel the necessary law of nations, because nations are bound by the law of nature to observe it; by others, the internal law of nations, because it is obligatory upon them in point of conscience.

*The law of nature, by the obligation of which individuals and states are bound, is identical with the will of God, and that will is ascertained, either by consulting Divine revelation, where that is declaratory, or by the application of human reason, where revelation is silent.

10. Should we separate the science of public law and that of ethics ?-3.

We ought not to separate the science of public law from that of ethics, nor encourage the dangerous suggestion, that governments are not so strictly bound by the obligations of truth, justice, and humanity, in relation to other powers, as they are in the management of their own local concerns.

11. How are states, or bodies politic, to be considered ?—3.

As moral persons having a public will, capable and free to do right and wrong, inasmuch as they are collections of individuals, each of which carries with him, into the service of the community, the same binding law of morality and religion which ought to control his conduct in private life.

12. Of what does the law of nations consist ?—3.

It is a complex system, composed of various ingredients. It consists of general principles of right and justice, equally suitable to the government of individuals in a state of natural equality, and to the relation and conduct of nations; of a collection of usages, customs, and opinions, the growth of civilization and commerce; and of a code of conventional or positive law.

13. In the absence of conventional or positive law, how are the intercourse and conduct of nations to be governed ?—3.

By principles fairly to be deduced from the rights and duties of nations, and the nature of moral obligations.

14. Have the Christian nations a law of nations peculiar to themselves?-3, 4.

The Christian nations of Europe, and their descendants on this side of the Atlantic, have established a law of nations peculiar to themselves. It is the offspring of modern times.

15. Had the ancients an international law ?—4.

The most refined states, among the ancients, seem to have had no conception of the moral obligations of justice and humanity between nations, and there was no such thing in existence as the science of international law. They regarded strangers and enemies as nearly synonymous, and considered foreign persons

and property as lawful prize. Their laws of war and peace were barbarous and deplorable. In the most enlightened ages of the Grecian republics, piracy was regarded as an honorable employment. There were states that avowed its practice.

16. What was the received opinion among the Grecians, as to the reciprocal rights and duties of their own cities and states?--4.

That they were bound to no duties, nor by any moral law, without compact; and that prisoners taken in war had no rights, and might lawfully be put to death, or sold into perpetual slavery with their wives and children.

17. Were the early Romans under the influence of international law?-5.

They exhibited much stronger proofs than the Greeks of the influence of regular law, and there was a marked difference between those nations in their intercourse with foreign powers. It was a principle of the Roman government, that none but a sworn soldier could lawfully fight the enemy; and in many instances the Romans showed that they excelled the Grecians, by the observance of better principles in their relations with other nations. The institution of the college of heralds, and the fecial law, were proofs of a people considerably advanced in the cultivation of the law of nations as a science.

18. When was the law of nations recognized by the Romans ?—7. In the latter age of the Roman empire, when their municipal law became highly cultivated, and adorned by philosophy and science, the law of nations was recognized by them as part of the natural reason of mankind.

19. What was the Roman jurisprudence, in its most cultivated state, on the subject of national duty ?—8.

It was a very imperfect transcript of the precepts of natural justice. It retained strong traces of ancient rudeness, from the want of the Christian system of morals, and the civilizing restraints of commerce.

20. Upon the fall of the Roman empire, what was the state of international law?—8.

The irruption of the northern tribes of Scythia and Ger

many, overturned all that was gained by the Roman law, annihilated every restraint, and all sense of national obligation; and civil society relapsed into the violence and confusion of the barbarous ages. Piracy, rapine and ferocious warfare deformed the annals of Europe. The manners of nations were barbarous, and their maxims of war cruel. Notwithstanding some efforts to introduce order and justice, and though municipal law had undergone great improvement, the law of nations remained in a rude and uncultivated state down to the period of the sixteenth century.

21. Did the Emperor Charlemagne improve the public law of Europe?-9.

He made distinguished efforts to improve the condition of Europe, by the introduction of order, and the propagation of Christianity; and we have examples, during the darkness of the middle ages, of some recognition of public law by means of alliances, and the submission of disputes to the arbitrament of a neutral power.

22. What institutions, about the period of the eleventh century, contributed, in a very essential degree, to improve the law of nations?-9.

Five are enumerated: 1. The feudal system. 2. The concur rence of Europe in one form of religious worship and government. 3. The establishment of chivalry. 4. The negotiations and treaties forming the conventional law of Europe. 5. The settlement of a scale of political rank and precedency. Of all causes of reformation, the most weight is to be attributed to the intimate alliance of the great powers as one Christian community.

23. What was the influence of Christianity in improving public law ?-10.

It was very efficient toward the introduction of a better and more enlightened sense of right and justice among the governments of Europe. It taught the duty of benevolence to strangers, of humanity to the vanquished, of the obligation of good faith, and of the sin of murder, revenge, and rapacity. The church had its councils or convocations of the clergy, which formed the nations professing Christianity into a connection resembling a federal alliance; and those councils sometimes set