venerdì 2 febbraio 2018

1/1ª James Kent: Lectures: Of the foundation and History of the Law of Nations-

B. Home. → Lc. 2/1ª
I° vol. 1ª ed. 1826.
Lecture I.

Of the foundation and History of the Law of Nations.

 When the United States cessed to be a part of the British empire, and assumed the character of an independent nation, they became subject to that systen of rules which reason, morality, and custom had established among the civilized nations of Europe, as their public law. During the war of the American revolution, Congress claimed cognizance of all matters arising upon the law of nations, and they professed obedience to the law, “according to the general usagee of Europe.” (a) By this law we are to understand that code of publica instruction, which defines the rights and prescribes the duties of nations, in their intercourse with each other. The faithful observance of this law is essential to national charachter, and to the happiness of mankind. According to the observation of the President de Montesquieu (b), it is founded on the principle, that different nations ought to each other as much good in peace, and as little in war, as possible, without injury to their true interest. But, as the precepts of this are not defined in every case with perfect precision, and as nations have no commons civil tribunal to resort to for the interpretation and excution of this law, it is often very difficult to ascertain, to the satisfaction of the parties concerned, its precise injunctions and extent; and a still greater difficulty is the want of adequate pacific means to secure obedience to its dictates.

Internet Archive: Vattel.
There has been a difference of opinion among writers, concerning the foundations of the law of nations. It has  been considered by some as a mere system of positive institutions, founded upon consent and usage; while others have insisted that it was essentially the same as the law of nature, applied to the conduct of nations, in the character of moral persons, susceptible of obligation and laws. We are not to adopt either of these theories as exclusively true. The most useful and practical part of the law of nations is, no doubt, instituted or positive law, founded 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, and sanction, from the same principles of right reason, and the same view of the nature and constitution of man, 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 (a).

We ought not, therefore, to separate the science of public law from that of ethics, nor encourage the dangerous suggestion, that gouvernments are not as strictly bound by the obligations of truth, justice, and humanity, in relation to other 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, in as much as tbey 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 bis 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 relation and conduct of nations; of a collection of usages and customs, the growth of civilization and commerce; and of a code of conventional or positive law (a). 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 authorithy 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. But the Christian nations of Europe, and their descendants on this side of the Atlantic, by the vast superiority of their attainments in arts, and science, and commerce, as well as in policy and government; and, above all, by the brighter light, the more certain truths, and the more definite sanction, which Chrintianity has communicaled to the ethical jurisprudence of the ancients, have established a law of nations peculiar to themselves. They