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5 preface The Law of Nations, though so noble and important a subject, has not hitherto been treated of with all the care it deserves. The greater part of mankind have therefore only a vague, a very incomplete, and often even a false notion of it. The generality of writers, and even celebrated authors , almost exclusively confine the name of the Law of Nations to certain maxims and customs which have been adopted by different nations , and which the mutual consent of the parties has alone rendered obligatory on them. This is confining within very narrow bounds a law so extensive in its own nature, and in which the whole human race are so intimately concerned; it is at the same time a degradation of that law, in consequence of a misconception of its real origin. There certainly exists a natural law of nations, since the obligations of the law of nature are no less binding on states, on men united in political society, than on individuals. But, to acquire an exactknowledge of that law, it is not sufficient to know what the law of nature prescribes to the individuals of the human race. The application of a rule to various subjects can no otherwise be made than in a manner agreeable to the nature of each subject. Hence it follows that the natural law of nations is a particular science, consisting in a just and rational application of the law of nature to the affairs and conduct of nations or sovereigns. All those treatises, therefore, in which the law of nations is blended and confounded with the ordinary law of nature,areincapable of conveying a distinct idea or a substantial knowledge of the sacred law of nations. The Romans often confounded the law of nations with the law of nature, giving the name of “the law of nations” (Jus Gentium) to the law of nature, as being generally acknowledged and adopted by all 6 preface civilised nations.* The definitions given by the emperorJustinian,of the law of nature, the law of nations, and the civil law, are well known.“The law of nature” says he, “is that which nature teaches to all animals”:† thus he defines the natural law in its most extensive sense, not that natural law which is peculiar to man, and which is derived as well from his rational as from his animal nature. “The civil law,” that emperor adds, “is that which each nation has established for herself, and which peculiarly belongs to each state or civil society. And that law, which natural reasonhas established amongallmankind,andwhichisequallyobserved by all people, is called the law of nations, as being a law which allnations follow.”‡ In the succeeding paragraph the emperor seems to approach nearer to the sense we at present give to that term. “The law of nations,” says he, “is common to the whole human race. The exigencies and necessities of mankind have induced all nations to lay down and adopt certain rules of right. For wars have arisen, and produced captivity and servitude, which are contrary to the law of nature; since, by the law of nature, all men were originally born free.”§ But, from what he adds— that almost all kinds of contracts, those of buying and selling, of hire, partnership, trust, and an infinite number of others, owe their origin to that law of nations,—it plainly appears to have been Justinian’s idea, that, according to the situations and circumstances in which men were placed, right reason has dictated to them certain maxims of equity, so founded on the nature of things, that they have been universally acknowledged and adopted. Still this is nothing more than the law of nature which is equally applicable to all mankind. * Neque vero hoc solum natura, id est, jure gentium, &c. Cicero de Offic. lib. iii. c. 5. † Jus naturale est, quod natura omnia animalia docuit. Instit. lib. i. tit. 2. ‡ Quod quisque populus ipse sibi jus constituit, id ipsius proprium civitatis est, vocaturque jus civile, quasi jus proprium ipsius civitatis: quod vero naturalis ratio inter omnes homines constituit, id apud omnes peraeque custoditur, vocaturque jus gentium, quasi quo jure omnes gentes utantur. Ibid. §1.§ Jus autem gentium omni humano generi commune est: nam usu exigente et humanis necessitatibus, gentes humanae jura quaedam sibi constituerunt. Bella etenim orta sunt, et captivitates secutae et servitutes, quae sunt naturali juri contrariae . Jure enim naturali omnes homines ab initio liberi nascebantur. Ibid. §2. preface 7 The Romans, however, acknowledged...


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Subject Headings

  • International law.
  • War (International law).
  • Natural law.
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