The second proposition for which I argued is one of very considerableimportanceIt was that the Law of Nationsas framed by the jurists whowere its authorsspread over the world not by legislationbut by a processof earlier dateOn the appreciation of this position depends not only theview taken of the Law of Nature and of the application of International Law,but also certain practical consequences which nay be momentousand at aquite recent date our country was in danger of adopting an opinion whichwould have separated it from the rest of the civilised worldand from whichit could only be saved by correct ideas on this very point.
In order that you may convince yourselves what might be the consequencesof demanding a legislative sanctionor a sanction derived from an authorityon a level with that of a modern legislaturefor the rules of InternationalLawI recommend you to compare the view of it taken by the statesmen andjurists of the United States of America with that to which this country mighthave committed itselfand from which it was delivered by the direct interventionof ParliamentThe United States are particularly worth examining in regardto the point before usbecause they were an instance of a new nation deliberatelysetting itself to consider splat new obligations it had incurred by determiningto take rank as a stateItaly is another and a later exampleand therehave been some others in South Americabut all these societiesmade upfrom smaller pre-existing territorial materialswere greatly influencedby the example of the American Federal UnionThe doctrines which the UnitedStates adopted may be gathered from some very valuable volumes which theAmerican Government has quite recently caused to be publishedand to whichI will presently call your attentionThe systematic American writers onInternational Law are less instructive on the points which I am going toplace before you than these booksbecause they usually follow the orderof topics taken up by older European writersBut I will quote a passagefrom one of the most careful and sober of writersChancellor Kentand alsofrom a writer who unhappily died the other dayand whose productions weremuch valued in the United States -MrPomeroyYou will have to recollectthat the question at issue between the English and Americans lawyers wasless what is the nature of International Lawand how it arosethan thequestion howand to what extenthave its rules become binding on independentstatesThese questions are often confounded togetheror found to be indissoluble,as will be plain from the extracts which I am about to read.
There has been a difference of opinion amongwriters concerning the foundationof the Law of NationsIt has been considered by some as a mere system ofpositive institutionsfounded upon consent and usageWhile others haveinsisted that it was essentially the same as the Law of Natureapplied tothe conduct of nationsin the character of moral personssusceptible ofobligations and lawsWe are not to adopt either of these theories as exclusivelytrueThe most useful and practical part of the Law of Nations isno doubt,instituted or positive lawfounded on usageconsentand agreementButit 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 thesame principles of right reasonthe same views of the nature and constitutionof manand the same sanction of Divine revelationas those from which thescience of morality is deducedThere is a natural and a positive Law ofNationsBy the formerevery statein its relations with other states,is bound to conduct itself with justicegood faithand benevolenceandthis application of the Law of Nature has been called by Vattel the necessaryLaw of Nationsbecause nations are bound by the Law of Nature to observeitand it is termed by others the internal Law of Nationsbecause it isobligatory upon them in point of conscienceWe ought notthereforetoseparate the science of public law from that of ethicsnor encourage thedangerous suggestion that governments are not so strictly bound by the obligationsof truthjusticeand humanityin relation to other powersas they arein the management of their own local concerns.
Statesor bodies politicare to be considered as moral personshavinga public willcapable and free to do right and wronginasmuch as they arecollections of individualseach of whom carries with him into the serviceof the community the same binding law of morality and religion which oughtto control his conduct in private lifeThe Law of Nations is a complex system,composed of various ingredientsIt consists of general principles of rightand justiceequally suitable to the government of individuals in a stateof natural equalityand to the relations and conduct of nationsof a collectionof usagescustomsand opinionsthe growth of civilization and commerce;and of a code of positive law.
