more especially, under a regular administration of civil government and laws. It has been observed, that the law of nature differs in its application, as the subjects differ to which it is applied. Nations are considered as wholly independent,each of the other, each as sovereign. They neither have, nor acknowledge any common judge or superior. But such is not the situation of individuals in any known state of society, be it ever so rude, and that whether the society has been formed by express compact, or by tacit consent, by custom witnessed by long usage. In the rudest state of society, there are some rules, by the whole held to be compulsory on individuals, and although these rules may be few, and the means of compulsion weak, so that it verges towards a state of individual independence, yet it is very distant from that state of independence, which is alone acknowledged among nations and in which their sovereignty consists. Hence, arises a principal source of difference, between the relations of the individuals of a community, and those of independent nations. A community or state of which a nation consists, is composed of individuals associated by compact, for their mutual benefit, their relations between the individuals, from which result, their rights and duties are often dictated, and always modified by human institutions, intended to promote the common interest, and each member has for this end submitted to the direction and control of the whole. The relations between independent nations are not originally dictated or modified by compact. Their origin and modifications are a consequence of the social nature of men, of whom nations are composed, and of the situation in which they are placed in respect to each other. From these relations, thus viewed, result the reciprocal rights and duties of independent nations, and the duties are made obligatory upon them, as are the duties of individuals, by the laws of nature applied agreeable to the difference of the situations and circumstances, that is, agreeable to the difference of the subjects.

The law of nations has usually, and with a sufficient degree of propriety, been reduced under three heads. First. The neces'sary, or as it is often denominated, the internal law of nations. Secondly. The conventional. And thirdly. The customary law of nations. The necessary or internal law of nations,

is analogous to the internal law of nature, of which we treated in the preceding chapter, on which Vattel observes, "It is necessary because nations are absolutely obliged to observe it. This law contains the precepts prescribed by the law of nature to states, to whom that law is not less obligatory than to individuals; because states are composed of men, their resolutions are taken by men, and the law of nature is obligatory to all men, under whatever relation they act.”*

The law of nature, thus applied to nations, has the same great end in view,-the general interest and happiness of man, and embraces the same general law of society, "that each should do for others, what their necessities require and he is capable of doing, without neglecting the duties which he owes to himself." This general law, properly applied in the manner before suggested, is no less binding on nations than individuals. In the application of the law of nature to nations, there exists a similar distinction between perfect and imperfect rights and duties. The difference principally consists in the manner, in which the law of nature gives effect to those rights, and in which these duties are required to be performed. This difference extends to both classes of rights and duties, as well to the duties of benevolence, as to the rights and duties of justice; but is most obvious in respect to the latter. Between independent nations, no authoritative tribunal, can, as in the case of individuals in civil society, be intervened, to decide their conflicting claims, and give redress to the party injuried, without a prostration of national independence, which the law of nations necessarily holds to be sacred and inviolable on all occasions. Each nation is therefore constituted the sole judge of its rights, of their violation by others, and of the manner, means, and measure of redress. In case of a dispute arising between two nations, other nations may interpose their good offices to effect a reconciliation, but are not permitted an authoritative interposition to impose constraint on either party. Hence it follows as a necessary consequence that in a case of war between two nations, all other nations, as they are not permitted to judge of the

*Law of Nations, Preliminaries, § 7.

nation is at liberty to see proper. It may be, and For it is no less a rule of of nature, that every one

right of either, are bound in their conduct towards the belligerents to consider both as having a just cause. If, however, a belligerent, contrary to the law of nations, should use his own rights against his enemy in such a manner as to injure the perfect rights of another nation, that redress in such way as it shall deem often is, a justifiable cause of war. the law of nations than of the law should so use his own right that he injure not the rights of others. The rule is however applied with some difference, arising from the independence of nations and the necessity of their situation, in consequence of which, some restrictions are laid on the usual intercourse between neutrals and belligerents, of which the neutral, as it tends to the common advantage, has no right to complain. With these, and some other modifications of the law of nature in its application, according to the difference of the subjects, and which in this brief sketch it is not necessary further to specify, it is called the voluntary law of nations; because, by its rules are to be decided what duties. each may require of others, what duties each is obliged to perform, and to which, therefore, all ought voluntarily to submit. In this view it is also called the external law of nations; and though, like the external law of nature, it does not extend to all that is required by the internal law, yet it does not dispense with the internal obligation, which remains to its full extent binding on the conscience.

A nation, as well as an individual, may lawfully renounce, in favor of others, or compromise its own rights. Any two nations may, therefore, by treaty, vary the voluntary law in relation to their conduct towards each other, and so far establish a new law to themselves. This law is called the conventional, sometimes the arbitrary, law of nations, and is fully obligatory to the contracting parties, provided it in no wise violates the perfect rights of others, or the duties which each owes to itself.

Under the same restrictions, a custom that has obtained in practice between nations, becomes in virture of a tacit consent, mutually binding on those, and only those who have adopted it; but that obligation may, in general, be dis

charged by a public declaration of either of the parties to the custom that they will no longer observe it. Such customs constitute what is denominated the customary law of nations. This, as well as the former, is, in strictness conventional; the one being established by the express, the other by a tacit agreement of the parties; and both derive all their validity from the natural law as applied to nations. No custom, however long, however universally it may have obtained, if not founded on the principles of natural law, if it will not endure the sure test of the law, in its tendency to promote the general interest of mankind, can justly be considered as belonging to the general law of nations; and yet such customs have prevailed generally, I may say universally, and still prevail to a great extent among the nations of the earth, and from their general prevalence have been considered as the dictates of nature, and received as her genuine laws. Of these customs it will be sufficient to mention those which governed the rights of war, anciently received as the universal law of nations. This law subjected in full right to the conqueror, the life, liberty, and property of the conquered. To grant to a captive enemy, or a conquered people, their lives in exchange for perpetual servitude, or for the payment of a perpetual tribute, was considered as an act of clemency, a humane relaxation of the right of the conqueror,-proof of the high antiquity of this custom, and its general prevalence we find in Homer, the most ancient profane writer whose works are extant. We meet with allusions to the right of the conqueror, and instances of the rigid exercise of that right, in almost every page; nor does the author once hint a suspicion of its being wrong, or a deviation from the principles of natural justice. A plenary proof of its still higher antiquity we have in the writings of Moses. In that history we find the same law of war prevailing in the very infancy of nations. In the code given by him to the nation of Israel, for reasons of religion, to guard against the introduction of idolatry, a relaxation of the strict right of the conqueror as then held, was prohibited to a certain extent.

Of the nations that dwelt in the land of their inheritance, they were commanded to destroy every thing that breathed.*

* Deut. xx. 16. and vii. 2.

If they went out to war against a remote nation, they were directed first to offer terms of peace. If the nation submitted, it was to be made tributary. If the offers of peace were rejected, they were commanded by an ordinance of their law to smite every male with the edge of the sword,--but to take the women and children as captives, that is for slaves.* By another ordinance, they were commanded, in addition to the males, which was construed to extend to the adult males only, to kill every woman who had known a man. We may learn how inveterate this custom had then become, when we find it was not deemed fit, or perhaps safe, to attempt its abolition in that nation, even by divine authority. Such is still the right of the conqueror as acknowledged by the received law of nations, throughout the dominions of Africa, and the greater part of Asia. The same law is admitted and carried into execution by the aboriginal nations and tribes of the American continent, with augmented barbarity. But among the nations of modern Europe and their descendants in other parts of the world, improvement in knowledge, refinement in manners and morals, and a more humane religion better understood, have nearly banished reproaches of this nature from their international code; we cannot say, entirely, while the Turk is suffered to remain an exception, and the inhuman trafic in slaves is yet tolerated by some nations of civilized Europe.

It was observed in a former chapter that a custom in any nation has its origin in the common feelings and sentiments of the people, and if we find the same custom prevailing universally among all nations, it is a proof that the same feelings and sentiments are universal, and may be admitted as a proof that such custom is a law of nature on the subjects which it embraces. But it is further observed, that circumstances very general may produce a perversion of feelings and sentiments, equally general. To such a perversion of feelings and sentiments, the custom under consideration, unquestionably owes its origin.

It may not be uninteresting briefly to examine the circum

*Deut. xx. 10. + B. iv. c. 3.