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THE NATURE, THE SOURCE; AND THE HISTORY OF LAW;
INTERNATIONAL LAW; PUBLIC AND PRIVATE;
CONSTITUTIONAL AND STATUTORY LAW:
FRANCIS WHARTON, LL.D.;
MEMBER OF THE INSTITUTE OF INTERNATIONAL LAW,
AND ON CONTRACTS.
KAY & BROTHER,
LAW BOOKSELLERS, PUBLISHERS, AND IMPORTERS.
IN the following pages it is attempted, for the use of students of all classes, to give an exposition of what may be called public law. In the first three chapters are considered successively the nature, the source, and the history of law; and it is maintained that law, as a rule of action, is the product of the conscience and need of the nation by which it is adopted. But a nation, in this sense, to be a law-maker, does not act intermittingly in public assemblies, voting at particular epochs after public notice and solemn debate. The laws which are really operative, and of which all enduring and efficient statutes are merely declaratory, are emanations rather than efforts; are the products and not the moulders of custom; are the instinctive and unconscious outgrowth of the nation, and not the creatures either of à priori political speculation or of arbitrary sovereign decree. A nation, to be a law-maker in this sense, is not the majority of a particular people as it exists at a particular time. It comprises that people as wrought up in one continuous body with those who preceded it as part of a common race; and hence the people of the United States, as primary law-makers, form one with the people of England who evolved the jury system, who made parliament the supreme power of the land, who won the petition of right from Charles I. and the writ of habeas corpus from Charles II., and who achieved
the revolutionary settlement of 1688. In this sense the law which obtains in the United States is not a scheme invented by statesmen at a particular crisis, but is the silent and spontaneous evolution of the nation, past as well as present, adapting itself to the conditions in which in each epoch it is placed. I am far from underrating the ability with which this view is contested by the analytical school of English jurists, of whom Hobbes and Austin are among the most conspicuous representatives; nor do I deny that in the ordinary processes of courts of justice, a law, to be formally executed, must in some sense have received the approval of the local sovereign. But I maintain that not only must law both precede and define sovereignty, but that no law imposed by a sovereign can be permanently operative unless it is declaratory of existing conditions ;3 and I maintain, further, that it is only by accepting this solution that we can rightly understand and construe either the law of nations or the distinctive public law of the United States.
I. First as to the law of nations. It is impossible, as we will hereafter observe, to conceive of international law without taking into consideration the past; it is impossible to apply it without considering how far it is moulded by the conditions of both past and present. In the United States this is peculiarly necessary. There can be no question that under the strain of the late civil war the government of the United States, finding itself in the unexpected and unfamiliar attitude of a belligerent, was disposed for a time to tear itself from its traditions, and unduly to exaggerate belligerent rights. But a nation cannot permanently abandon a traditional policy when that policy is not only the product of its
Infra, §§ 22, 62, 64, 86, 111, 364. 2 Infra, §§ 6, 47, 91 et seq.
3 As sustaining more or less completely this position may be cited Ba
con, infra, §§ 22, 63, 86; Hooker, infra, §§ 33, 47, 86; and Burke, infra, §§ 27, 33, 365.
natural conditions, but is wise and humane. In deference, therefore, not only to our traditions, but to the interests of humane civilization in general, we should insist that the rights of neutrals should be so far protected as to make neutrality safer than war, and thus to diminish the temptation to belligerency. The rights of nations at peace should be resolutely guarded; the prerogatives of nations at war should be strictly limited; and in this way the inducements to war lessened and the benefits of peace enhanced. It is to promote these results that the Institute of International Law, of which I have the honor to be a member, was founded ; and the positions taken in the following pages are in the main in accordance with the views adopted by the great body of my distinguished colleagues in that institute. These positions are as follows:
1 Infra, § 121.
Infra, § 134.
Infra, §§ 134, 596.
(1) International law appeals primarily to the sense of right among nations.1
(2) The tendency of modern civilization is towards the enlargement of homogeneous liberal sovereignties, each more or less charged with the maintenance of just and comprehensive international rules;2 and the effect of the late civil war in the United States, in establishing the indissolubility of the Union and exhibiting its great military capacity and the energy and courage of its citizens both northern and southern, has been to place it in the front rank of such sovereignties.3
(3) Deference to the rights of small sovereignties is a duty incumbent on great sovereignties.*
(4) All governments which now exist are based more or less remotely on revolution; and consequently no sovereign can claim recognition as such simply on the ground of legitimacy.5
4 Infra, § 138.
5 Infra, § 145.