he employs, provided he adheres to his definitions; but I think that it would be better, in a word so commonly used with a different meaning, to have affixed some explanatory adjective to that class of laws which Mr. Austin refers to, instead of declaring that laws of this class are the only laws that can be properly so called. And this position I find strengthened by a passage in Hooker, a sound authority for an English word, who seems to have anticipated the very objection made by Mr. Austin, "They, who are accustomed thus to speak, apply the name of law unto that only rule of working which supreme authority imposeth; whereas we, somewhat enlarging the sense thereof, term any kind of rule or canon whereby actions are framed, a law." (1) * (1) Eccles. Pol. I. 3, p. 72 (ed. 1676). [* The popularity which Mr. Austin's writings have recently attained has had the effect of attracting a good deal of attention to his definition of the term law and to the rigorous limitations with which he surrounds it. Sir H. S. Maine has initiated a reaction against Mr. Austin's terminology mainly on historical grounds. He has pointed out ("Village Communities," Lecture II., and "Early Institutions," Lecture XIII.) that all the most characteristic phenomena of law are found to exist in states of society to which the essential elements of all law, according to Mr. Austin's definition, are wholly alien; and also that Mr. Austin's analytical method takes no account of the facts of the growth and the character of government as presented in any known national society. Sir H. S. Maine has lucidly explained how it came about that of the two aspects of law, "Force" and "Order," Mr. Austin fixed most of his attention upon the former aspect to the comparative neglect of the latter. It is further to be noted that Mr. Austin's identification of the "Law of Nations" with "International Morality " was, on more grounds than one, most unfortunate. It tended to keep out of sight the remarkable parallelism, in form and substance, which the rules of the Law of Nations undoubtedly present to the national system of law of every civilized country, and it ignores the existence both of a true system of International Morality (however imperfectly evolved and recognised at present) and of the immutable lines by which the provinces of International, as of all other, Morality and of Law are severed.-ED.] term. It is in this sense, of the rule " whereby actions are General curframed" by independent States in their relations with rency of the each other, that the term "Law of Nations" is here employed. In this sense the term has been constantly used in the writings of jurists, and in the diplomacy of governments; as, for instance, when Congress, during the American war of Independence, professed adherence to the law of nations "according to the general usages of Europe," (1) and in innumerable other instances. wherein the "Law of Nations," whatever that may be, is referred to as existing, and recognised as binding, in state-papers issued by every European government. (1) Kent's Commentaries on American Law (Abdy's edition), p. 3. the law of na pensation. CHAPTER II. HISTORY OF THE SCIENCE OF THE LAW OF NATIONS. Faint traces of AMONG the nations of antiquity but very slight traces tions in ancient are observable of any such sense of moral obligahistory. No tion as the law of nations imposes. The peculiar inferences to be drawn from nature of the dispensation of the Jews prevented the the Jewish dis- rules enjoined for the guidance of that nation from being binding upon other States. Selden has some good remarks on this point in his Treatise, De Jure Naturali et Gentium juxta disciplinam Ebræorum, where he observes that the law of nature, as controlling human actions, being identical with the will of God, the exhibition of that will in the Jewish dispensation is of the first importance to the moralist, as containing direct revelations respecting human duty. (1) But much was revealed as divine will to the Jews which had exclusive reference to them as a peculiar people; and this applies most forcibly to their conduct towards other nations, where the necessity of suppressing idolatry made unusual measures indispensable. Of this nature were the prohibition to trade with other people, their commission to extirpate certain nations, the slaying of prisoners, and other such cases which clearly had reference solely to the Jews as a peculiar people. To the Jewish dispensation, therefore, although of divine revelation, we cannot have recourse for precedents as to the law of nations, a law of which the Jews had no idea, and from the obligations of which they were absolved by their peculiar circum stances. (1) Lib. I. c. 8. Greeks. Among the Greeks there were a few customary ob- Among the servances in their conduct towards foreign States; but their slaying their prisoners, and occasional maltreatment of ambassadors, shew them to have had nothing that can properly be called a notion of the law of nations, any more than that existing among the Iroquois, with whom Montesquieu (1) declares that some traces of this law are observable in their respect for ambassadors from other tribes. Romans. By the Romans rather greater attention was paid Among the than by the Greeks to the customs observed in their intercourse with other States. The Romans had their well-known college of feciales, instituted by Numa Pompilius. It was composed of twenty persons, of whom the chief bore the title of Pater Patratus, and their duties consisted of the consideration of all questions of peace and war, the conclusion of treaties, and the reception of ambassadors. As long as Rome continued a republic this institution still existed, but its active functions had ceased long before the period when inscriptions prove that the title was still extant: at the time of the Cæsars it had dwindled into obscurity, and in the reign of Tiberius hardly a trace of the fecial college remained. (2) But it seems to be incorrect to speak of the conduct of the Greeks and Romans towards foreign States as guided by the law of nations. Neither people had any idea of that law as obligatory upon all mankind: their feelings towards foreign States were of the utmost contempt, closely resembling those recently entertained in slave States by whites towards blacks: (3) and their (1) Esp. des Loix, l. I. ch. 3. (2) Ompteda, Litteratur des Völker-Rechts, I. 142-147. (3) Witness the often cited confusion of language which in cluded a stranger and an enemy The term hardly applicnations. able to these Jus gentium the Roman law. customs in their intercourse with foreign governments seem to have originated in no sense of moral obligation, but to have existed as little more than a part of their municipal law, ordaining certain rules to be observed by their officers in their conduct towards foreign governments. These usages were sometimes coincident with the law of nations, but were not adopted from any sense of right deduced from that source, and, as far as they may be available at the present day, have little value beyond what curiosity may attach to them as examples of the customary law of nations at a remote period. The term jus gentium is used by the compilers of the as employed in Roman law, but it is employed in the sense of the French droit public, and not in the meaning of international law. The same principle, the law of nature guiding the conduct of mankind, constitutes the basis of the law of nations, but it was not considered by these jurists with reference to such obligations. (1)* (1) "Quod quisque populus ipsi sibi jus constituit, id ipsius proprium civitatis est, vocaturque civile, quasi jus proprium ipsius civitatis; quod vero naturalis ratio inter omnes homines constituit, id apud omnes peræque custoditur, vocaturque jus gentium, quasi quo omnes gentes utuntur." "Jus naturale est quod natura omnia animalia docuit, nam jus istud non humani generis proprium, sed omnium animalium *Jus gentium * est. Gaius and Ulpian, as quoted by [* In his "Ancient Law" (ch. iii.), Sir H. S. Maine has investigated the historical point of contact between the jus gentium of the earlier, and the jus naturæ of the later Roman lawyers. In the Institutes of Justinian some confusion is manifested, the expression jus gentium being sometimes used as if it were convertible with jus naturale or jus naturæ, and sometimes as if it were opposed to the latter. (Compare I. J. (1, ii.), and II. J. (ii. 1).) Savigny complains severely of this confusion and explains how it arose. (System des |