The Law of Nations.

From: Essays on the Principles of Morality, and on the Private and Political Rights and Obligations of Mankind (1834).
Author: Jonathan Dymond
Published: Harper & Brothers 1834 Philadelphia

^{Although the subject of this chapter can scarcely be regarded as constituting rules of life yet we are induced briefly to notice them in the present Essay, partly on account of the importance of the affairs which they regulate, and partly because they will afford satisfactory illustration of the principles of Morality.}

  THE Law of Nations, so far as it is founded upon the principles of morality, partakes of that authority which those principles possess; so far as it is founded merely upon the mutual conventions of states, it possesses that authority over the contracting parties which results from the rule that men ought to abide by their engagements. The principal considerations which present themselves upon the subject appear to be these:

  1. That the law of nations is binding upon those states who knowingly allow themselves to be regarded as parties to it:

  2. That it is wholly nugatory with respect to those states which are not parties to it:

  3. That it is of no force in opposition to the moral law.

  I. The obligation of the law of nations upon those who join in the convention is plain—that is, it rests, generally, upon all civilized communities which have intercourse wi.th one another. A tacit engagement only is, from the circumstances of the case, to be expected; and if any state did not choose to conform to the law of nations, it should publicly express its dissent. The law of nations is not wont to tighten the bonds of morality; so that probably most of its positive requisitions are enforced by the moral law: and this consideration should operate as an inducement to a conscientious fulfilment of these requisitions. In time of war, the law of nations prohibits poisoning and assassination, and it is manifestly imperative upon every state to forbear them; but while morality thus enforces many of the requisitions of the law of nations, that law frequently stops short, instead of following on to whither morality would conduct it. This distinction between assassination and some other modes of destruction that are practised in war is riot perhaps very accurately founded in considerations of morality: nevertheless, since the distinction is made, let it be made, and let it by all means be regarded. Men need not add arsenic and the private dagger to those modes of human destruction which war allows. The obligation to avoid private murder is clear, even though it were shown that the obligation extends much further. Whatever be the reasonableness of the distinction, and of the rule that is founded upon it, it is perfidious to violate that rule.

  So it is with those maxims of the law of nations which require that prisoners should not be enslaved, and that the persons of ambassadors should be respected. Not that I think the man who sat down with only the principles of morality before him would easily be able to show, from those principles, that the slavery was wrong while other things which the law of nations allows are right,—but that, as these principles actually enforce the maxims, as the observance of them is agreed on by civilized states, and as they tend to diminish the evils of war, it is imperative on states to observe them. Incoherent and inconsistent as the law of nations is, when it is examined by the moral law, it is pleasant to contemplate the good tendency of some of its requisitions. In 1702, previous to the declaration of war by this country, a number of the anticipated “enemy’s” ships had been seized and detained. When the declaration was made, these vessels were released, “in pursuance,” as the proclamation stated, “of the law of nations.” Some of these vessels were perhaps shortly after captured and irrecoverably lost to their owners: yet though it might perplex the Christian moralist to show that the release was right, and that the capture was right too, still he may rejoice that men conform, even in part, to the purity of virtue.

  Attempts to deduce the maxims of international law as they now obtain, from principles of morality, will always be vain. Grotius seems as if he would countenance the attempt when he says, “Some writers have advanced a doctrine which can never be admitted, maintaining that the law of nations authorizes one power to commence hostilities against another, whose increasing greatness awakens her alarms. As a matter of expediency,” says Grotius, “such a measure may be adopted; but the principles of justice can never be advanced in its favour.”¹ Alas! if principles of justice are to decide what the law of nations shall authorize, it will be needful to establish a new code to-morrow. A great part of the code arises out of the conduct of war; and the usual practices of war are so foreign to principles of justice and morality, that it is to no purpose to attempt to found the code upon them. Nevertheless, let those who refer to the law of nations introduce morality by all possible means; and if they think they cannot appeal to it always, let them appeal to it where they can. If they cannot persuade themselves to avoid hostilities when some injury is committed by another nation let them avoid them when “another nation’s greatness merely awakens their alarms.”

  II. That the law of nations is wholly nugatory with respect to those states which are not parties to it is a truth which, however sound, has been too little regarded in the conduct of civilized nations. The state whose subjects discover and take possession of an uninhabited island, is entitled by the law of nations quietly to possess it. And it ought quietly to possess it; not that in the view of reason or of morality, the circumstance of an Englishman’s first visiting the shores of a country gives any very intelligible right to the King of England to possess it rather than any other prince, but that, such a rule having been agreed upon, it ought to be observed.—But by whom? By those who are parties to the agreement for which reason, the discoverer possesses no sufficient claim to oppose his right to that of a people who were not parties to it. So that he who, upon pretence of discovery, should forcibly exclude from a large extent of territory a people who knew nothing of European politics, and who in the view of reason possessed an equal or a greater right, undoubtedly violates the obligations of morality. It may serve to dispel the obscurity in which habit and self-interest wrap our perceptions, to consider, that among the states which were nearest to the newly discovered land, a law of nations might exist which required that such land should be equally divided among them. Whose law of nations ought to prevail? That of European states, or that of states in the Pacific or South Sea? How happens it that the Englishman possesses a sounder right to exclude all other nations, than surrounding nations possess to partition it among them?

  Unhappily, our law of nations goes much further; and by a monstrous abuse of power, has acted upon the same doctrine with respect to inhabited countries; for when these have been discovered, the law of nations has talked, with perfect coolness, of setting up a standard, and thenceforth assigning the territory to the nation whose subjects set it up; as if the previous inhabitants possessed no other claim or right than the bean and wolves. It has been asked (and asked with great reason), what we should say to a canoe full of Indians who should discover England, and take possession of it in the name of their chief?

  Civilized states appear to have acted upon the maxim, that no people possess political rights but those who are parties to the law of nations; and accordingly the history of European settlements has been, so far as the aborigines were concerned, too much a history of outrage, and treachery, and blood. Penn acted upon sounder principles: he perfectly well knew that neither an established practice nor the law of nations could impart a right to a country which was justly possessed by former inhabitants; and therefore, although Charles II. “granted” him Pennsylvania, he did not imagine that the gift of a man in London could justify him in taking possession of a distant country without the occupiers’ consent. What was “granted” therefore by his sovereign he purchased of the owners; and the sellers were satisfied with their bargain and with him. The experience of Pennsylvania has shown that integrity is politic as well as right. When nations shall possess greater expansion of knowledge, and exercise greater purity of virtue, it will be found that many of the principles which regulate international intercourse are foolish as well as vicious that while they disregard the interests of morality they sacrifice their own.

  III. Respecting the third consideration, that the law of nations is of no force in opposition to the moral law, little needs to be said here. It is evident that upon whatever foundation the law of nations rests, its authority is subordinate to that of the will of God. When therefore we say that among civilized states, when an island is discovered by one state, other states are bound to refrain, it is not identical with saying that the discoverer is at liberty to keep possession by whatever means. The mode of asserting all rights is to be regulated in subordination to the moral law. Duplicity, and fraud, and violence, and bloodshed may perhaps sometimes be the only means of availing ourselves of the rights which the law of nations grants: but it were a confused species of morality which should allow the commission of all this, because it is consistent with the law of nations.

  A kindred remark applies to the obligation of treaties. Treaties do not oblige us to do what is morally wrong. A treaty is a string of engagements; but those engagements are no more exempt from the jurisdiction of the moral law, than the promise of a man to assassinate another. Does such a promise morally bind the ruffian? No: and for this reason, and for no other, that the performance is unlawful. And so it is with treaties. Two nations enter into a treaty of offensive and defensive alliance. Subsequently one of them engages in an unjust and profligate war. Does the treaty morally bind the other nation to abet the profligacy and injustice? No: if it did, any man might make any action lawful to himself by previously engaging to do it. No doubt such a nation and such a ruffian have done wrong; but their offence consisted in making the engagement, not in breaking it. Even if ordinary wars were defensible, treaties of offensive alliance that are unconditional with respect to time or objects can never be justified. The state, however, which, in the pursuit of a temporary policy, has been weak enough or vicious enough to make them, should not hesitate to refuse fulfilment, when the act of fulfilment is incompatible with the moral law. Such a state should decline to perform the treaty, and retire with shame,—with shame, not that it has violated its engagements, but that it was ever so vicious as to make them.

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^{1 Rights of War and Peace.}

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