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domain of ethics. It may not include the whole of that domain, but the centres of each system coincide, although the circumference of one may extend beyond the circumference of the other.
When I say that this must be a moral rule, that is to say, a rule dictated by the moral sense, I do not mean, of course, that it is the moral sense of any individual man, or of any individual nation, because there are differences in the moral convictions of different men and of different nations. It is a controversy between nations. We cannot apply to it the moral standard, either of one, or of the other, or of any particular nation. Where, then, can we find it? I submit to you that we must find the rule in that general moral standard upon which all civilized nations and the people of all civilized nations are agreed. We cannot take the opinions of one; we cannot take the opinions of another. We must take that standard upon which all civilized nations are agreed; and that there is such a standard there can be no manner of doubt. This whole proceeding would be out of place if there were not. I could not with any propriety or relevancy stand up and address an argument to this Tribunal unless there was some agreed standard between it and me to which I could appeal, and upon which I can hope to convince. There is, therefore, an agreed standard of morality and of right, of justice and of law, agreed upon among all civilized nations and among the people of all civilized nations. It is just as it is in municipal law. There is a standard there. When controversies are brought before a municipal tribunal, it is most generally the case that there is no particular statutory law which governs the decision; and it is very often, and perhaps generally, the fact that there is no particular prior decision, or precedent, which will serve as a rule of decision; and yet the courts make a decision.
How do they reach it? It is because the judges of municipal tribunals are judicial experts; whose business it is to ascertain the general standard of justice of their own country and to apply it to the controversies wich are brought up before them. The general standard of justice in a municipal society is so much of the general rules of morality and ethics as that particular society chooses to enforce upon its members. So, also, in the larger society of nations, there is a similar rule. There is a general international standard which embraces so much of the principles of morality and ethics as the nations of the world agree shall be binding upon them. That is international law, founded upon morality, founded upon that sentiment of right and wrong implanted in the breasts of men wherever they are. It is this alone which enables them to engage in society with each other; it is this alone which enables them to live at peace with each other; and, therefore, the
ORAL ARGUMENT OF MR. CARTER.
rule wich this Tribunal is to adopt is the general standard of justice recognized by the nations of the world, which I conceive to be only another term for international law.
The President. Mr. Carter, if you please, we will continue to-morrow.
Before rising, I beg leave to state that the Tribunal intends taking a somewhat longer recess to-morrow. It will take its recess from one o'clock until two, which is an exception to our usual practice.
[The Tribunal thereupon adjourned until to-morrow, April 14, 1893, at 11.30 o'clock a. m.]
NINTH DAY, APRIL 14TH, 1893.
[The Tribunal met pursuant to adjournment.]
The President. Mr. Carter, if you will continue your argument we will be pleased to hear you.
Mr. Carter. Mr. President, at the close of the sitting yesterday, I was speaking to the point of what law shall govern the deliberations and the determination of this Tribunal, and I had, in the course of my argument upon that point, undertaken to show that the rule which should govern must be some rule of right, and therefore a moral rule, founded upon moral considerations; not necessarily the moral rule which governs the jurisprudence of both England and the United States, even if they should happen to coincide upon that point; but that moral rule which is generally recognized by the civilized nations of the world; that general standard of justice, that international standard of justice, which is generally recognized, and which is only another name for international law.
International law, therefore, is the rule which is to govern the deliberations of this Tribunal and to determine its decision. What are the sources to which we are to look for this international law? For the most part international law is derived from, and is determined by, what is called the law of nature, a term very common with the writers on international law. It is called the law of nature, partly because it is a code, so far as it may be called a code, not derived from legislation, having no origin in any legislature sovereign above all nations, — for there is no such legislature; not derived from human institution at all, but founded in the nature of man and in the environment in which he is placed. It is an absolute necessity of human society, without which it could not exist, that there should be a moral rule by which the actions of its individual members in relation to each other should be governed. This is true of all municipal states, and it is equally true of the larger society of nations. There could be no intercourse among nations; there could be no intercourse between individuals of different nations, unless there was some rule, some law, which would be recognized by them and by which their transactions with each other should be governed. And in respect of the great society of nations which is subject to no sovereign power,
that law or rule is, for the most part, what is commonly called the law of nature. This is, indeed, the foundation, not only of international law, but it is the foundation of all law, municipal as well. All municipal codes are but attempts on the part of particular societies of men to draw precepts and rules from the law of nature, and re-enact them for the guidance of its individual members; and in those countries which are not governed wholly by codes or by statutory enactments; in those countries like England and Amcrica, where the great body of jurisprudence is unwritten, still the decisions of the tribunals which constitute the sources and the evidence from which the law is ascertained, are derived in great part from the law of nature.
I must fortify what I say in that particular by a reference to some of the highest authorities on this subject. I shall read a quotation from the celebrated disquisition of Sir James MacIntosh on the Law of Nature and Nations. He
The science which teaches the rights and duties of men and of states has in modern times been styled “ the law of nature and nations.” Under this comprehensive title are included the rules of morality, as they prescribe the conduct of private men towards each other in all the various relations of human life; as they regulate both the obedience of citizens to the laws, and the authority of the magistrate in framing laws and administering government; and as they modify the intercourse of independent commonwealths in peace and prescribe limits to their hostility in war. This important science comprehends only that part of private ethics which is capable of being reduced to fixed and general rules.
He thus points out the law of nature as the source of all human jurisprudence, whether municipal or international; and Lord Bacon had before expressed the same truth; he says:
For there are in nature certain fountains of justice, whence all civil laws are derived but as streams, and like as waters do take tinctures and tastes from the soils through which they run, so do civil laws vary according to the regions and governments where they are planted, though they proceed from the same fountain.
This law of nature, as it is styled, is sometimes designated by different terms. Sometimes as natural law; sometimes as natural justice; sometimes as the dictates of right reason; but by whatever name it is described, the same thing is always intended; and it means, in short, those rules and principles of right and wrong, implanted in every human breast and which men recognize in their intercourse with each other, because they are men having a moral nature and are brought into conditions with each other which compel the application of moral rules. I may cite a reference by one of the great authorities which all English lawyers
are compelled to study at the very beginning of their instruction. That is Blackstone. He says :
This law of nature being coeval with mankind, and dictated by God himself, is, of course, superior in obligation to any other. It is binding over the globe, in all countries, and at all times; no human laws are of any validity if contrary to this, and such of them as are valid derive all their force and all their authority, mediately or immediately, from this original. (Comm. Book I, p. 41.)
And the dependency of all law upon the law of nature is very happily and clearly illustrated by those three great maxims which constitute the basis of the jurisprudence of the Roman law, sometimes called the Ulpianic precepts. They amount simply to a reduction to their original form of the dictates of natural justice, or of natural law,- and they are thus familiar to every lawyer : « Juris præcepta sunt hæc : honeste vivere, alterum non lædere, suum cuique tribuere. »
Some writers have been sometimes inclined to dispute the authority of this law of nature, on the ground that there is no supreme power capable of enforcing its precepts; that nations are themselves supreme; and being supreme and sovereign there is no power over them; and no power, therefore, to enforce the dictates of this law, as there is a power to enforce the rules of municipal law upon the individual members of a municipal state. But that notion, I think, is a mistake, and has generally been agreed to be a mistake. It does not follow because there is no supreme authority to enforce the dictates of this law that it is any the less binding. There are plenty of considerations which do enforce it. It is enforced, in the first instance, by the sense of right and wrong which dwells in the breasts of nations, as it does in the breasts of individuals. The very sense of obligation is of itself a means of enforcing the law. It is enforced, in the next place, by the public opinion of mankind, which holds to a strict account every nation that undertakes to depart from, or violate, its dictates; and it is enforced, in the next place, by the disastrous consequences which nature herself has ordained and made certain to follow from any disobedience of its precepts. This has been well expressed by a distinguished English writer upon international law. "I refer to Sir Robert Phillimore. He says:
It is sometimes said that there can be no law between nations, because they acknowledge no common superior authority, no international executive capable of enforcing the precepts of international law. This objection admits of various answers : First, it is a matter of fact that states and nations recognize the existence and independence of each other, and out of a recognized society of nations, as out of a society of individuals, Jaw must necessarily spring. The common rules of right approved by nations as regulating their