ΤΟ

CHARLES JOHN VISCOUNT CANNING,

IN AFFECTIONATE

ACKNOWLEDGMENT OF HIS LONG FRIENDSHIP,

AND IN SINCERE VENERATION FOR THE ILLUSTRIOUS NAME

WHICH HE WORTHILY BEARS,

THESE PAGES ARE INSCRIBED.

PREFACE.

THE necessity of mutual intercourse is laid in the nature of States, as it is of Individuals, by God, who willed the State and created the Individual. The intercourse of Nations, therefore, gives rise to International Rights and Duties, and these require an International Law for their regulation and enforcement.

That law is not enacted by the will of any common Superior upon earth, but it is enacted by the will of God; and it is expressed in the consent, tacit or declared, of Independent Nations.(a)

The law which governs the external affairs equally with that which governs the internal affairs of States, receives accessions from custom and usage, binding the subjects of them as to things which, previous to the introduction of such custom and usage, might have been in their nature indifferent.(b)

Custom and usage, moreover, outwardly express the consent of nations to things which are naturally, that is by the law of God, binding upon them. But it is to be *remembered that in this latter case, usage is the effect and not the cause of the Law.(c)

[*vi] International Jurisprudence has received since the civilization of mankind, and especially since the introduction of Christianity, continual culture and improvement; and it has slowly acquired, in great measure and on many subjects, the certainty and precision of positive law.

There can be few nobler objects of contemplation and study than to trace the gradual progress of this jurisprudence-the steps by which it has arisen from a few simple rules of natural law transferred from individuals to states, to the goodly and elaborate fabric which it now presents. The history of this progress has been written by Ompteda, Miruss, and Wheaton(d) in a manner which leaves the German, the English, and the French readers but little to desire. This subject receives some further

(a) Grot. Proleg. ss. 19-25. "Omni autem in re consensio omnium gentium lex naturæ putanda est:" Cic. Tusc. i. 13.

(b) "Omne jus aut necessitas fecit, aut consensus constituit, aut formavit consuetudo."-Dig. de Leg. 40.

(c) Veruntamen hic etiam usus est effectus juris, non ipsum jus, quia hoc jus non ex usu, sed usus ex jure est."-Suarez, De Lege a terrâ et naturali, ac Jure Gentium, l. i. c. xix. 8. Cic. de Off. 1. 3. 5.

(d) By this author, both in English and French.

notice in the body of this work, but the space within which this preface is necessarily confined, does not allow me to enter into details, which have received a very able exposition from the authors to whom I have referred; and I must content myself with inviting the attention of my readers to the principal epochs of this interesting and instructive portion of the moral and intellectual history of mankind.

I propose to cast a very rapid glance over the principal Jurists, whose labours have contributed to raise the edifice of International Law, and to conclude this preface with some observations on a subject, not altogether, it may be hoped, devoid of interest to all students of jurisprudence and *history, but certainly not unworthy the attention of English [*vii] readers namely, the growth and cultivation of the science of

International Law in this country.

BEFORE THE CHRISTIAN ERA.

It is hardly necessary to say, that the peculiar dispensation under which the Jewish nation was placed, and the rigidly prescribed mode of their dealings with foreign nations, render vain any attempt to trace in the history of that people the vestiges of International Jurisprudence.(e)

The Egyptians held the persons of ambassadors sacred upon strictly religious grounds, and it appears to have been not unreasonably supposed that the Egyptian priests compiled a written jus feciale, which Pythagoras transplanted into Greece. Neither the source nor the nature of International Law can be said to have been unknown to the Greeks.

It was indeed a maxim of their wisest statesmen (ƒ) that no State could subsist without acknowledging the rights of its neighbours, and the remarkable institution of the Amphyctyonic League approached to the reality of an international tribunal, so far as the great republic of the different States of Greece was concerned; but the stranger with whom there was no alliance was an enemy, and all treaties of peace, like those formerly made between the Turks and Europeans, were for a limited period.

The Collegium and the Jus Feciale of the Romans are the most remarkable instances of regard for International justice ever exhibited by any nation, and the wonder is *increased by the reflection, that this [*viii] Collegium was the institution of a nascent state, which, in its very infancy, laid down the observance of right towards other nations, as a cardinal principle of its public policy.-The institution of the recuperatores also bears testimony to the same political integrity; how much, indeed, the practice of Rome in her maturity and decline was at variance with that principle of her early days, is well known.

But making, as History compels us to do, this admission, it must be

(e) Michaelis, Mosaisches Recht, Th. ii. Israelitisches Staatsrecht.

See the treatment of David's ambassador by the King of the Ammonites.-2 Samuel, c. x.

(ƒ) Wacksmuth, Jus Gentium quale obtinuit apud Græcos (Berol. 1822.) Vide post, Part I., chapter ii.

remembered that if the Jus inter Gentes, (g) strictly speaking, was violated by the practice of conquering Rome, yet the Jus Gentium was in reality established by her compilation of Jurisprudence; for in this stood transcribed externally, if the word were applicable to a mortal work, those maxims of written Reason, those principles of Natural Law, which not only guide a State in its conduct towards Individual Foreigners, and are the root of Comity or Private International Law, but which guide a State in its conduct towards other States, and which constitute the most considerable foundation of Public International Justice.

THE CHRISTIAN ÆRA BEFORE GROTIUS.

We enter next upon the Christian æra. Great and inestimable has been the effect of the doctrines of Revelation upon the Jurisprudence of Nations, though long retarded by the evil passions both of mankind generally and of the governors of men; yet the language, and the teaching, the system of a representation of different *nations, the very forms [*ix] of the assembling of the Councils of the Church, the notion of a common International Tribunal, the authority of the Pope during ages steeped in intellectual ignorance and moral grossness, contributed to preserve some idea of the Duties and Rights of Nations.

During the earlier part of the Middle Ages the Pope discharged the functions of International Judge and Arbitrator in the conventions of Christendom. The practice might have been imperfect, but the theory was sublime. The Right of the Pope to discharge these noble functions. was almost unquestioned before the time of Boniface VIII., 1302, A. D. A great change was effected by the introduction and prevalence of the doctrine, that a distinction was to be taken between temporal subjection ratione feudi, and subjection in temporal matters ratione peccati.(h) In Ecclesiastical Law the distinction was of little avail, and easily evaded, for in the Middle Ages the acts of an absolute irresponsible prince were easily brought within the category of sin (ratione peccati). But in International Law, the distinction was of the utmost importance, for it was now competent to Princes to tell their subjects, that there were circumstances, under which the Papal Interdict was unlawful, and therefore invalid. The Pope lost his character of international Judge, and retained but for a season, and with difficulty, the character of International Arbitrator. That too, had disappeared before the epoch of the Reformation; though up to that period all the foreign or international affairs of a state were considered and treated as matters appertaining solely to the prince, and with which the people had no concern.

It must be remembered that, even in the year 1493, *Ferdinand [**] and Isabella were confirmed in their possessions and discoveries in the New World by the Bull of the Pope, issued, as former Bulls had been, in virtue of his territorial supremacy over the whole world; and

(g) The expression of Lucan as to the violation of the Laws of Embassy by the Egyptians is very remarkable; I do not remember to have seen it noticed: "Sed neque jus mundi valuit, neque fœdera sancta Gentibus."-Pharsal. x, 471-2.

(h) De Marca, De Concord. Sacerd. et Imper. iv. c. xvi. 5.