intercourse are of themselves, as has been shown, such a law. Secondly, the contrary position confounds two distinct things, namely, the physical sanction which law derives from being enforced by superior power, and the moral sanction conferred on it by the fundamental principle of right; the error is similar in kind to that which has led jurists to divide moral obligations into perfect and imperfect. All moral obligations are equally perfect, though the means of compelling their performance is, humanly speaking, more or less perfect, as they more or less fall under the cognizance of human law. In like manner, internalional justice would not be less deserving of that appellation if the sanctions of it were wholly incapable of being enforced.

But irrespectively of any such means of enforcement the law must remain. God has willed the society of States as He has willed the society of individuals. The dictates of the conscience of both may be violated on earth, but to the national as to the individual conscience, the language of a profound philosopher is applicable: "Had it strength as it had right, had it power as it has manifest authority, it would absolutely govern the world".

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Lastly, it may be observed on this head, that the history of the world, and especially of modern times, has been but incuriously and unprofitably read by him who has not perceived the certain Nemesis which overtakes the transgressors of international justice; for, to take but one instance, what an «<lliad of woes » did the precedent of the first partition of Poland open to the kingdoms who participated in that grievous infraction of international law! The Roman law nobly expresses a great moral truth in the maxim, “ Jurisjurandi. contempta religio satis Deum habet ultorem". The commentary of a wise and learned French jurist upon these words is remarkable and may not inaptly close this first part of the work: "Paroles (he says) qu'on peut appliquer également à toute infraction des lois naturelles. La justice de l'Auteur de ces lois n'est pas moins armée contre ceux qui les transgressent que contre les violateurs du serment, qui n'ajoute rien à l'obligation de les observer, ni à la force de nos engagements, et qui ne sert qu'à nous rappeler le souvenir de cette justice inexorable. » (Phillimore's International Law, third edition, London, 1879, vol. I, section LX.)

And let me cite another extract which I had noted from Sir James MacIntosh, and from the same disquisition to which I have already referred:

The duties of men, of subjects, of princes, of lawgivers, of magistrates, and of states, are all parts of one consistent system of universal morality. Between the most abstract and elementary maxims of moral philosophy, and the most complicated controversies of civil and public law there subsists a connection. The principle of justice deeply rooted in the nature and interests of man pervades the whole system and is discoverable in every part of it, even to the minutest ramification in a legal formality or in the construction of an article in a treaty. (Sir James Mac Intosh, Discourse on the Law of Nature and Nations, sub fine.)

And Mr. Justice Story says in his book on the Conflict of Laws, Ch. II, Sec. 35:

The true foundation on which the administration of international law must

rest is that the rules which are to govern are those which arise from mutual interest and utility, from a sense of the inconveniences which would result from a contrary doctrine, and from a sort of moral necessity to do justice in order that justice may be done to us in return.

The same great authority when sitting as a judge in the case of La Jeune Eugénie, in the second of Mason's Reports, p. 449, says:

But I think it may be unequivocally affirmed that every doctrine that may be fairly deduced by correct reasoning from the rights and duties of nations and the nature of moral obligations may theoretically be said to exist in the law of nations; and, unless it be relaxed or waived by the consent of nations, which may be evidenced by their general practice and custom, it may be enforced by a court of justice wherever it arises in judgment.

The main foundation of international law is, therefore, the law of nature, and it is a system not evidenced by any written code, but is a body of moral rules. But it is a body of moral rules, at the same time, as to which all men are not absolutely agreed. There are differences in the moral convictions of different men, and there are differences in the moral convictions of the same people and the same nation at different periods of time. Law is a progressive system advancing step by step with human progress, and it is constantly aspiring, as it were, to reach a more complete harmony with theoretical moral rules. We cannot, therefore, in applying international law apply those moral rules which we ourselves may deduce from our study of moral precepts. Others may not agree with us; but still there is a great body of plain and simple moral rules to which all men, and all nations, may safely be presumed to agree, and to that extent we may enforce them. It is, nevertheless, true that in human jurisprudence the actual doctrines which are enforced upon the individuals of a municipal state, or which are yielded to and recognized by nations, do not come up to the elevated standard of the law of nature. That is a system of very high standards, not at all times actually recognized in the practice of men. Where these standards do thus stand above the actual practice of men, what we have to enforce, — as we can enforce only what is agreed upon, is the rules so far as they are actually recognized.

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That truth has been rather strikingly illustrated in the case of the slave trade. Very few enlightened men could be found who would not say that the slave trade was essentially and absolutely wrong. Very few could be found who would not say that it was absolutely contrary to the law of nature; but is it against human law? Few of the nations of the world had, until recently, so far recognized the pure and true principles of natural law as to carry

them out to the consequence of forbidding the slave trade. That question has arisen judicially before several tribunals. It arose in the Supreme Court of the United States, and called for the consideration of Chief Justice Marshall. The question was whether the Supreme Court of the United States could execute a municipal law which declared the slave trade to be piracy as against the citizens of another nation. He held that the slave trade was undoubtedly; against the law of nature, but at the same time, taking into consideration the extent to which the nations of the earth had been addicted to the practice, he said it was impossible to declare that it was against the law of nations; and he, therefore, held that a municipal law of the United States declaring the slave trade to be piracy could not be executed against the citizens of another nation. A similar decision upon similar grounds was made by a distinguished English judge, equally illustrious. I referto Lord Stowell.

Where, then, are we to look for the other evidence which is to enable us to ascertain what the law of nations is in any particular case? First, let me say, to the actual practice and usages of nations; for the practice and usages of nations must import the points upon which they are agreed; and where the practice and usages of nations speak we need look no further. But the practice and usages of nations speak in but a comparatively few cases. They really cover but a very small part of the questions which arise, and of the still larger number of questions which, by possibility, may arise, and which at sometime or other certainly will arise, in the intercourse of nations. In the municipal law of states the case is otherwise. Particular states have a regular establishment of courts. They employ a regular body of experts called judges. The controversies between man and man are innumerable, and they have been arising for thousands of years. Therefore, the science of justice and the law of nature, so far as it is applicable to the relations between individual men, have been so assiduously cultivated in municipal law that we may say there is scarcely a point which remains still to be determined.

In international law it is otherwise. The points in which nations come into connection with each other, or into collision with each other, are comparatively few, and therefore the occasions for the study, the development and the application of the law of nations have, in the course of history, been comparatively few. For the most part, therefore, when new questions arise we are referred at once to the law of nature, which is the true source upon which the whole system of the law of nations rests; and there we are entitled to look to and to take as law, the plain deductions of right reason from admitted principles, unless we find that those plain deduc

tions have, somewhere or somehow, not been recognized by the nations of the earth in their actual intercourse with each other.

I desire to read one or two more extracts from writers of eminence upon international law, in corroboration of the views which I have just expressed. I read a passage from Mr, Pomeroy, a distinguished American writer, the head of the law school of the University of California. He says (Lectures on International Law, ed. 1886, ch. I):

SEC. 29. (3) What is called international law in its general sense, I would term international morality. It consists of those rules founded upon justice and equity, and deduced by right reason, according to which independent states are accustomed to regulate their mutual intercourse, and to which they conform their mutual relations. These rules have no binding force in themselves as law; but states are more and more impelled to observe them by a deference to the general public opinion of Christendom, by a conviction that they are right in themselves, or at least expedient, or by a fear of provoking hostilities. This moral sanction is so strong and is so constantly increasing in its power and effect, that we may with propriety say these rules create rights and corresponding duties which belong to and devolve upon independent states in their corporate political capacities.

SEC. 30. We thus reach the conclusion that a large portion of international law is rather a branch of ethics than of positive human jurisprudence. This fact, however, affords no ground for the jurist or the student of jurisprudence to neglect the science. Indeed, there is the greater advantage in its study. Its rules are based upon abstract justice; they are in conformity with the deductions of right reason; having no positive human sanction they appeal to a higher sanction than do the precepts of municipal codes. All these features clothe them with a nobler character than that of the ordinary civil jurisprudence, as God's law is more perfect than human legislation.

The observations of Mr. Pomeroy that these rules have no binding force in themselves as law is not a very correct statement. In my view they have in themselves a binding effect as law at all times and all places; and as Mr. Justice Blackstone says, greater in one sense, at least, than any human law. This view was taken by the Government of Great Britain in a celebrated paper, drawn up, I think, by Lord Mansfield himself, which was a response to a memorial by the Prussian Government, a paper which was pronounced by Montesquieu to be réponse sans réplique, and has been generally recognized as a very complete statement. I am reading now from the 12th page of my argument:

"The law of nations is said to be founded upon justice, equity, convenience, and the reason of the thing and confirmed by long usage.

And Chancellor Kent has spoken to the same point with great clearness (Comm., part. I, lect. 1, p. 2-4):

The most useful and practical part of the law of nations is, no doubt, instituted or positive law, founden on usage, consent, and agreement. But it

would be improper to separate this 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 nature and constitution of man, and the same sanction of divine revelation, as those from which the science of morality is deduced. There is a natural and a positive law of nations. By the former every state, in its relations with other states, is bound to conduct itself with justice, good faith, and benevolence; and this application of the law of nature has been called by Vattel the necessary law of nations, because nations are bound by the law of nature to observe it; and it is termed by others the internal law of nations, because it is obligatory upon them in point of conscience.

We ought not, therefore, 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 others powers, as they are in the management of their own local concerns. States or bodies politic are to be considered as moral persons, having a public will, capable and free to do right and wrong, inasmuch as they are collections of individuals, each of whom 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. The law of nations 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 relations 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.

In the absence of these latter regulations, the intercourse and conduct of nations are to be governed by principles fairly to be deduced from the rights and duties of nations and the nature of moral obligation; and we have the authority of the lawyers of antiquity, and of some of the first masters in the modern school of public law, for placing the moral obligation of nations and of individuals on similar grounds, and for considering individual and national morality as parts of one and the same science.

The law of nations, so far as it is founded on the principles of natural law, is equally binding in every age and upon all mankind.

And a French writer, Hautefeuille, has spoken to the same point (Des Droits et des Devoirs des Nations Neutres en Temps de Guerre Maritime, 1848, vol. I, Translation):

He (God) has given to nations and to those who govern them a law which they are to observe towards each other, an unwritten law, it is true, but a law which He has taken care to engrave in indelible characters in the heart of every man, a law which causes every human being to distinguish what is true from what is false, what is just from what is unjust, and what is beautiful from what is not beautiful. It is the divine or natural law; it constitutes what I shall call primitive law.

This law is the only basis and the only source of international law. By going back to it, and by carefully studying it, we may succeed in retracing the rights of nations with accuracy. Every other way leads infallibly to error, to grave, nay, deplorable error, since its immediate result is to blind nations and their rulers, to lead them to misunderstand their duties, to violate them, and too often to shed torrents of human blood in order to uphold unjust pretensions. The divine law is not written, it has never been formulated in any human language, it has never been promulgated by any legislator; in fact,