also loose and imperfect, and the grounds of International Morality shake under us. It may be added further, that the body of International Law, in the course of the jural and moral progress of Nations, constantly becomes more and more exact, more and more complete: and that, along with this improve. ment and extension of International Law, International Morality becomes more and more firm in its basis. Nations have the power of pushing onwards their moral and intellectual progress in this direction, no less than in others.

1139. International Law is sometimes called The Law of Nations: meaning, by this phrase, the Law between Nations. But this phrase may create confusion, from its resemblance to the phrase Jus Gentium, which is used by the Roman Lawyers, to denote, not International Law, but Positive or Instituted Law, so far as it is common to all Nations. When the Romans spoke of International Law, they termed it Jus Feciale, the Law of Heralds, or International Envoys.

1140. The Jus Gentium, the Instituted Law common to all Nations, is sometimes put in opposition to Jus Naturæ, the Law of Nature, a Law which it was conceived might be deduced from necessary Principles. Thus Grotius* asserts that jure naturæ, subjects are not bound by, nor responsible for, the acts of the Sovereign, but that jure gentium, they are. But from what has been said already, we see that this distinction cannot be maintained. For, as we have said, no Jus, no doctrine concerning Rights and Obligations, can exist without Definitions of Rights and Obligations; and such definitions must be given by historical fact, and not, by mere reasoning from ideas, as the conception of a Jus Naturæ assumes. And as this general reasoning shows that there can

VOL. II.

* De Jure Belli et Pacis, III., 2., 1.

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be no force in distinctions like the one just quoted, so we can easily show the distinction is untenable in the special instance. The reason which Grotius assigns for the distinction is this: Mero nuturæ jure, ex facto alieno nemo tenetur nisi qui bonorum successor sit: 66 By the law of nature, no man is bound by another's act, except he have the succession to his goods." To this argument we reply, that children are bound by the acts of a parent, not in consequence of any special expectation of succeeding to his goods, but in virtue of the general tie of the Fa mily; and that subjects are, in like manner, bound by the acts of the Sovereign, in virtue of the general tie of the State. The State is a bond which unites men Jure Naturæ, in the same sense in which the Family does. Man, considered as a moral agent, can no more divest himself of the bonds of social, than of domestic society. The assumption of a State of Nature in which family ties, and their bearing, on property, exist, while political ties do not exist, is altogether arbitrary. We see this arbitrary character strongly marked in the argument of Grotius. To say that, by the Law of Nature, the succession of children to the goods of the parent is recognized, but the authority of the sovereign is not recognized, is to assume a Law of Nature at variance with the most general Laws of Nations: for all Nations have inforced the latter Rule, but many have rejected, or limited and modified the former.

1141. But though we are thus led to reject the Jus Naturæ, as a source of Rights separate from, and opposed to, the Jus Gentium; we are not to lose sight of the truths which Jurists have endeavoured to express by this separation and opposition. And these truths are of two classes. In some of the contrasts of this kind, the Law of Nations stands above the Law of Nature, as being a source of more full and definite Rights. Such is the case in the instance

just noticed for there, the bond that unites the Sovereign and the Subject is spoken of as something added, by the Law of Nations, to Rights and Obligations which man has by the Law of Nature. And the truth here involved is, that however imperfect political Society may be, we can conceive man to exist in a State in which political ties are still weaker, and yet not quite to lose his moral nature. If, hy. pothetically, we take away the mutual relations of the State and its subjects, we can still conceive the relations of Family to remain; and even Property to exist although, in truth, on this hypothesis, Property can exist only, in so far as the Family takes the place of the State.

1142. But in another class of such contrasts, the Law of Nature stands above the Law of Nations; as being a source of a higher morality than may be exemplified by any given rude state of Law. Thus we may say, that, among the ancients, by the Law of Nations, the inhabitants of a conquered country became slaves: but that there is a Law of Nature, the bond of a common humanity, which abrogates this cruel Law. And the general truth involved in such assertions is, that the Law of Nations, whatever, at any particular time, it may be, may always be made more just and humane; and ought to be made more just and humane, in order to correspond to man's moral nature. As in the former contrast, it was implied, that the Law of Nations is never so bad as to divest man of his moral nature; so here it is implied, that the Law of Nations is never so good as fully to satisfy man's moral

nature.

1143. The Law of Nations, including, in this, International Law, is subject to the conditions of which we have already spoken as belonging to the Law of any one Nation. It is capable (457) of Progressive Standards: it is fixed for a given time,

and obligatory while it is fixed: but it must acknow. ledge the Authority of Morality (461), and must, in order to conform to the moral nature of man, become constantly more and more moral. The progress of International Law in this respect, is more slow and irregular than that of a well-guided National Law; and this circumstance, as well as the feebler and more mixed character of the authority of International Law, may sometimes make the influence of Moral principles more obscure in this than in other departments of Morality. Yet a brief survey of International Jus, in the form in which it is presented by some of the most generally esteemed writers on the subject, will show that it is, in fact, an important part of Morality, and depends mainly upon the Principles which we have already established.

1144. We have said that International Law, in its rudest form, involves a recognition of the moral nature of man. To illustrate this, we may remark, that in the rudest form of International Law, we have a distinction of the states of War and Peace. This distinction implies a limitation, by common understanding or agreement, of the state of universal war of every man against every man, which we must conceive to prevail, if we consider man as a creature impelled merely by desire and anger. Among animals, we have, properly speaking, neither war nor peace. Some live together harmlessly,

some are in constant conflict, according to their instincts. There may be pauses of the struggle, arising from mutual fear, or satiety. But there is, in such creatures, no consciousness of a common Rule, no apprehension of Rights vested in the parties by such a Rule. The conception of the Rights of War introduces the moral nature of man. In our survey of International Rights we shall therefore first speak of these.

CHAPTER II.

THE RIGHTS OF WAR.

1145. HISTORY give us a glimpse of an ancient state of things in which the distinction of War and Peace had not been established for nations in general. The occupation of the Pirate, who plunders all whom he can overpower, was not less honourable than other occupations; and States granted to other States, or to particular persons, a protection from spoliation (arvía) as an exception to a general Rule. When peaceable relations were permanently established among the Greek States, this was still looked upon as the result of a Convention, which included them only. In Livy,* the Macedonian ambassadors say, "Cum barbaris eternum omnibus Græcis bellum est, eritque." A like state of things is indicated by the Latin word "hostis," which signified alike " a stranger" and " an enemy." The introduction of the term "perduellis," an enemy proprio nomine, indicated the establishment of a distinction between the two, though Cicero interprets the fact the opposite way; namely, that the open enemy was called a stranger as a gentler term, "lenitate verbi tristitiam rei mitigante.'

1146. It was an important step in International Law, to establish this distinction between War, and Piracy, the practice of general spoliation. And for this purpose, it is proper to give a definition of War. A definition which has been given, and which may serve as the basis of our remarks, is this," Bellum est contentio publica, armata, justa." It is necessary to attend to each of these three conditions. War is a public contest: it is the act of the

*B. xxi., c. 29.

† Cic. Off, 1., 12. Albericus Gentilis, De Jure Belli. 1589.