Читать книгу The Law of Nations - Emer de Vattel - Страница 13

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 exact knowledge 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, are incapable 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 <iv> being generally acknowledged and adopted by all civilised nations.^* The definitions given by the emperor Justinian, 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 reason has established among all mankind, and which is equally observed by all people, is called the law of nations, as being a law which all nations 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 <v> 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.

The Romans, however, acknowledged a law whose obligations are reciprocally binding on nations: and to that law they referred the right of embassies. They had also their fecial law, which was nothing more than the law of nations in its particular relation to public treaties, and especially to war. The feciales were the interpreters, the guardians, and, in a manner, the priests of the public faith.^*

The moderns are generally agreed in restricting the appellation of “the law of nations” to that system of right and justice which ought to prevail between nations or sovereign states. They differ only in the ideas they entertain of the origin whence that system arose, and of the foundations upon which it rests. The celebrated Grotius understands it to be a system established by the common consent of nations; and he thus distinguishes it from the law of nature: “When several persons, at different times and in various places, maintain the same thing as certain, such coincidence of sentiment must be attributed to some general cause. Now, in the questions before us, that cause must necessarily be one or the other of these two—either a just consequence drawn from natural principles, or a universal consent. <vi> The former discovers to us the law of nature, and the latter, the law of nations.”^†

That great man, as appears from many passages in his excellent work, had a glimpse of the truth: but as he had the task of extracting from the rude ore, as it were, and reducing into regular shape and form, a new and important subject which had been much neglected before his time, it is not surprising, that,—having his mind burthened with an immense variety of objects, and with a numberless train of quotations which formed a part of his plan,—he could not always acquire those distinct ideas so necessary in the sciences. Persuaded that nations or sovereign powers are subject to the authority of the law of nature, the observance of which he so frequently recommends to them,—that learned man, in fact, acknowledged a natural law of nations, which he somewhere calls the internal law of nations: and perhaps it will appear that the only difference between him and us lies in the terms. But we have already observed, that, in order to form this natural law of nations, it is not sufficient simply to apply to nations what the law of nature decides with respect to individuals. And besides, Grotius, by his very distinction, and by exclusively appropriating the name of “the law of nations” to those maxims which have been established by the common consent of mankind, seems to intimate, that sovereigns, in their transactions with each other, cannot insist on the observance of any but those last-mentioned maxims,—reserving the internal law for the direction of their own consciences. If—setting out with the idea that political societies or nations live, with respect to each other, in a reciprocal independence, in the state of nature, and that, as political bodies, they are subject to the natural law—Grotius had moreover considered that the law must <vii> be applied to these new subjects in a manner suitable to their nature,—that judicious author would easily have discovered that the natural law of nations is a particular science; that it produces between nations even an external obligation wholly independent of their will; and that the common consent of mankind is only the foundation and source of a particular kind of law called the Arbitrary Law of Nations.

Hobbes, in whose work we discover the hand of a master, notwithstanding his paradoxes and detestable maxims,—Hobbes was, I believe, the first who gave a distinct though imperfect idea of the law of nations. He divides the law of nature into that of man, and that of states: and the latter is, according to him, what we usually call the law of nations. “The maxims,” he adds, “of each of these laws are precisely the same: but as states once established assume personal properties, that which is termed the natural law when we speak of the duties of individuals, is called the law of nations when applied to whole nations or states.”^* This author has well observed, that the law of nations is the law of nature applied to states or nations. But we shall see in the course of this work, that he was mistaken in the idea that the law of nature does not suffer any necessary change in that application,—an idea from which he concluded that the maxims of the law of nature and those of the law of nations are precisely the same.

Puffendorf declares that he unreservedly subscribes to this opinion espoused by Hobbes.^* He has not therefore separately treated of the law of nations, <viii> but has every-where blended it with the law of nature properly so called.

Barbeyrac, who performed the office of translator and commentator to Grotius and Puffendorf, has approached much nearer to the true idea of the law of nations. Though the work is in every body’s hands, I shall here, for the reader’s convenience, transcribe one of that learned translator’s notes on Grotius’s Law of War and Peace.^† “I acknowledge,” says he, “that there are laws common to all nations,—things which all nations ought to practise towards each other: and if people choose to call these the law of nations, they may do so with great propriety. But setting aside the consideration that the consent of mankind is not the basis of the obligation by which we are bound to observe those laws, and that it cannot even possibly take place in this instance,—the principles and the rules of such a law are in fact the same as those of the law of nature, properly so called; the only difference consisting in the mode of their application, which may be somewhat varied, on account of the difference that sometimes happens in the manner in which nations settle their affairs with each other.”

It did not escape the notice of the author we have just quoted, that the rules and decisions of the law of nature cannot be purely and simply applied to sovereign states, and that they must necessarily undergo some modifications in order to accommodate them to the nature of the new subjects to which they are applied. But it does not appear that he discovered the full extent of this idea, since he seems not to approve of the mode of treating the law of nations separately from the law of nature as relating to individuals. He only commends Budaeus’s method, saying, “it was right in that author to point out,^* after each article of the law of nature, the application which may be <ix> made of it to nations in their mutual relations to each other,—so far at least as his plan permitted or required that he should do this.”^† Here Barbeyrac made one step at least in the right track: but it required more profound reflection and more extensive views in order to conceive the idea of a system of natural law of nations, which should claim the obedience of states and sovereigns,— to perceive the utility of such a work, and especially to be the first to execute it.

This glory was reserved for the baron de Wolf. That great philosopher saw that the law of nature could not, with such modifications as the nature of the subjects required, and with sufficient precision, clearness, and solidity, be applied to incorporated nations or states, without the assistance of those general principles and leading ideas by which the application is to be directed;—that it is by those principles alone we are enabled evidently to demonstrate that the decisions of the law of nature respecting individuals must, pursuant to the intentions of that very law, be changed and modified in their application to states and political societies,—and thus to form a natural and necessary law of nations:^* whence he concluded, that it was proper to form a distinct system of the law of nations,—a task which he has happily executed. But <x> it is just that we should hear what Wolf himself says in his Preface.¹

“Nations,”^† says he, “do not, in their mutual relations to each other, acknowledge any other law than that which nature herself has established. Perhaps, therefore, it may appear superfluous to give a treatise on the law of nations, as distinct from the law of nature. But those who entertain this idea have not sufficiently studied the subject. Nations, it is true, can only be considered as so many individual persons living together in the state of nature; and, for that reason, we must apply to them all the duties and rights which nature prescribes and attributes to men in general, as being naturally born free, and bound to each other by no ties but those of nature alone. The law which arises from this application, and the obligations resulting from it, proceed from that immutable law founded on the nature of man; and thus the law of nations certainly belongs to the law of nature: it is therefore, on account of its origin, called the natural, and, by reason of its obligatory force, the necessary law of nations. That law is common to all nations; and if any one of them does not respect it in her actions, she violates the common rights of all the others.

“But nations or sovereign states being moral persons, and the subjects of the obligations and rights resulting, in virtue of the law of nature, from the act of association which has formed the political body,—the nature and essence of these moral persons necessarily differ, in many respects, from the nature and essence of the physical individuals, or men, of whom they are composed. When, therefore, we would apply to nations the duties which the law of nature prescribes to individual man, and the rights it confers on him in order to enable him <xi> to fulfil his duties,—since those rights and those duties can be no other than what are consistent with the nature of their subjects, they must, in their application, necessarily undergo a change suitable to the new subjects to which they are applied. Thus we see that the law of nations does not in every particular remain the same as the law of nature, regulating the actions of individuals. Why may it not therefore be separately treated of, as a law peculiar to nations?”

Being myself convinced of the utility of such a work, I impatiently waited for Monsieur Wolf’s production, and, as soon as it appeared, formed the design of facilitating, for the advantage of a greater number of readers, the knowledge of the luminous ideas which it contains. The treatise of the philosopher of Hall[[e]] on the law of nations is dependent on all those of the same author on philosophy and the law of nature. In order to read and understand it, it is necessary to have previously studied sixteen or seventeen quarto volumes which precede it. Besides, it is written in the manner and even in the formal method of geometrical works. These circumstances present obstacles which render it nearly useless to those very persons in whom the knowledge and taste of the true principles of the law of nations are most important and most desirable. At first I thought that I should have had nothing farther to do, than to detach this treatise from the entire system by rendering it independent of every thing Monsieur Wolf had said before, and to give it a new form, more agreeable, and better calculated to ensure it a reception in the polite world. With that view, I made some attempts; but I soon found, that if I indulged the expectation of procuring readers among that class of persons for whom I intended to write, and of rendering my efforts beneficial to man-kind, it was necessary that I should form a very different work from that which lay before me, and undertake to furnish an original production. The method <xii> followed by Monsieur Wolf has had the effect of rendering his work dry, and in many respects incomplete. The different subjects are scattered through it in a manner that is extremely fatiguing to the attention: and as the author had, in his “Law of Nature,” treated of universal public law, he frequently contents himself with a bare reference to his former production, when, in handling the law of nations, he speaks of the duties of a nation towards herself.

From Monsieur Wolf’s treatise, therefore, I have only borrowed whatever appeared most worthy of attention, especially the definitions and general principles; but I have been careful in selecting what I drew from that source, and have accommodated to my own plan the materials with which he furnished me. Those who have read Monsieur Wolf’s treatises on the law of nature and the law of nations, will see what advantage I have made of them. Had I every-where pointed out what I have borrowed, my pages would be crowded with quotations equally useless and disagreeable to the reader. It is better to acknowledge here, once for all, the obligations I am under to that great master. Although my work be very different from his (as will appear to those who are willing to take the trouble of making the comparison), I confess that I should never have had the courage to launch into so extensive a field, if the celebrated philosopher of Hall[[e]] had not preceded my steps, and held forth a torch to guide me on my way.

Sometimes, however, I have ventured to deviate from the path which he had pointed out, and have adopted sentiments opposite to his. I will here quote a few instances. Monsieur Wolf, influenced perhaps by the example of numerous other writers, has devoted several sections^* to the express purpose of treating of the nature of patrimonial kingdoms, without rejecting or rectifying that idea so degrading to human kind. I do not even admit of such a denomination, which I <xiii> think equally shocking, improper, and dangerous, both in its effects, and in the impressions it may give to sovereigns: and in this, I flatter myself I shall obtain the suffrage of every man who possesses the smallest spark of reason and sentiment,—in short, of every true citizen.

Monsieur Wolf determines (Jus Gent. §878) that it is naturally lawful to make use of poisoned weapons in war. I am shocked at such a decision, and sorry to find it in the work of so great a man. Happily for the human race, it is not difficult to prove the contrary, even from Monsieur Wolf’s own principles. What I have said on this subject may be seen in Book III. §156.

In the very outset of my work, it will be found that I differ entirely from Monsieur Wolf in the manner of establishing the foundations of that species of law of nations which we call voluntary. Monsieur Wolf deduces it from the idea of a great republic (civitatis maximae) instituted by nature herself, and of which all the nations of the world are members. According to him, the voluntary law of nations is, as it were, the civil law of that great republic. This idea does not satisfy me; nor do I think the fiction of such a republic either admissible in itself, or capable of affording sufficiently solid grounds on which to build the rules of the universal law of nations which shall necessarily claim the obedient acquiescence of sovereign states. I acknowledge no other natural society between nations than that which nature has established between mankind in general. It is essential to every civil society (civitati) that each member have resigned a part of his right to the body of the society, and that there exist in it an authority capable of commanding all the members, of giving them laws, and of compelling those who should refuse to obey. Nothing of this kind can be conceived or supposed to subsist between nations. Each sovereign state claims and actually possesses an absolute independence on <xiv> all the others. They are all, according to Monsieur Wolf himself, to be considered as so many individuals who live together in the state of nature, and who acknowledge no other laws but those of nature, or of her Great Author. Now, although nature has indeed established a general society between mankind, by creating them subject to such wants as render the assistance of their fellow-creatures indispensably necessary to enable them to live in a manner suitable to men,—yet she has not imposed on them any particular obligation to unite in civil society, properly so called: and if they all obeyed the injunctions of that good parent, their subjection to the restraints of civil society would be unnecessary. It is true, that, as there does not exist in mankind a disposition voluntarily to observe towards each other the rules of the law of nature, they have had recourse to a political association, as the only adequate remedy against the depravity of the majority,—the only means of securing the condition of the good, and repressing the wicked: and the law of nature itself approves of this establishment. But it is easy to perceive that the civic association is very far from being equally necessary between nations, as it was between individuals. We cannot therefore say that nature equally recommends it, much less that she has prescribed it. Individuals are so constituted, and are capable of doing so little by themselves, that they can scarcely subsist without the aid and the laws of civil society. But as soon as a considerable number of them have united under the same government, they become able to supply most of their wants; and the assistance of other political societies is not so necessary to them as that of individuals is to an individual. These societies have still, it is true, powerful motives for carrying on a communication and commerce with each other; and it is even their duty to do it; since no man can, without good reasons, refuse assistance to another man. But the law of nature may suffice to regulate this commerce, and this <xv> correspondence. States conduct themselves in a different manner from individuals. It is not usually the caprice or blind impetuosity of a single person that forms the resolutions and determines the measures of the public: they are carried on with more deliberation and circumspection: and, on difficult or important occasions, arrangements are made and regulations established by means of treaties. To this we may add, that independence is even necessary to each state, in order to enable her properly to discharge the duties she owes to herself and to her citizens, and to govern herself in the manner best suited to her circumstances. It is therefore sufficient (as I have already said) that nations should conform to what is required of them by the natural and general society established between all mankind.

But, says Monsieur Wolf, a rigid adherence to the law of nature cannot always prevail in that commerce and society of nations; it must undergo various modifications, which can only be deduced from this idea of a kind of great republic of nations, whose laws, dictated by sound reason and founded on necessity, shall regulate the alterations to be made in the natural and necessary law of nations, as the civil laws of a particular state determine what modifications shall take place in the natural law of individuals. I do not perceive the necessity of this consequence; and I flatter myself that I shall, in the course of this work, be able to prove, that all the modifications, all the restrictions,—in a word, all the alterations which the rigour of the natural law must be made to undergo in the affairs of nations, and from which the voluntary law of nations is formed,—to prove, I say, that all these alterations are deducible from the natural liberty of nations, from the attention due to their common safety, from the nature of their mutual correspondence, their reciprocal duties, and the distinctions of their various rights, internal and external, perfect and imperfect,—by a mode of reasoning nearly similar to that which Mon-<xvi>sieur Wolf has pursued, with respect to individuals, in his treatise on the law of nature.

In that treatise it is made to appear that the rules, which, in consequence of the natural liberty of mankind, must be admitted in questions of external right do not cancel the obligation which the internal right imposes on the conscience of each individual. It is easy to apply this doctrine to nations, and—by carefully drawing the line of distinction between the internal and the external right—between the necessary and the voluntary law of nations—to teach them not to indulge themselves in the commission of every act which they may do with impunity, unless it be approved by the immutable laws of justice, and the voice of conscience.

Since nations, in their transactions with each other, are equally bound to admit those exceptions to, and those modifications of, the rigour of the necessary law, whether they be deduced from the idea of a great republic of which all nations are supposed to be the members, or derived from the sources whence I propose to draw them,—there can be no reason why the system which thence results, should not be called the Voluntary Law of nations, in contradistinction to the necessary, internal, and consciential law. Names are of very little consequence: but it is of considerable importance carefully to distinguish these two kinds of law, in order that we may never confound what is just and good in itself, with what is only tolerated through necessity.

The necessary and the voluntary law of nations are therefore both established by nature, but each in a different manner; the former as a sacred law which nations and sovereigns are bound to respect and follow in all their actions; the latter, as a rule which the general welfare and safety oblige them to admit in their transactions with each other. The necessary law immediately proceeds from nature; and that common mother of mankind recommends the obser-<xvii>vance of the voluntary law of nations, in consideration of the state in which nations stand with respect to each other, and for the advantage of their affairs. This double law, founded on certain and invariable principles, is susceptible of demonstration, and will constitute the principal subject of this work.

There is another kind of law of nations, which authors call arbitrary, because it proceeds from the will or consent of nations. States, as well as individuals, may acquire rights and contract obligations, by express engagements, by compacts and treaties: hence results a conventional law of nations, peculiar to the contracting powers. Nations may also bind themselves by their tacit consent: upon this ground rest all those regulations which custom has introduced between different states, and which constitute the usage of nations, or the law of nations founded on custom. It is evident that this law cannot impose any obligation except on those particular nations who have, by long use, given their sanction to its maxims: it is a peculiar law, and limited in its operation, as the conventional law: both the one and the other derive all their obligatory force from that maxim of the natural law which makes it the duty of nations to fulfil their engagements, whether express or tacit. The same maxim ought to regulate the conduct of states with regard to the treaties they conclude, and the customs they adopt. I must content myself with simply laying down the general rules and principles which the law of nature furnishes for the direction of sovereigns in this respect. A particular detail of the various treaties and customs of different states belongs to history, and not to a systematic treatise on the law of nations.

Such a treatise ought, as we have already observed, principally to consist in a judicious and rational application of the principles of the law of nature to the affairs and conduct of nations and sovereigns. The study of the law of nations supposes therefore a pre-<xviii>vious knowledge of the ordinary law of nature: and in fact I proceed on the supposition that my readers are already, to a certain degree at least, possessed of that knowledge. Nevertheless, as it is not agreeable to readers in general to be obliged to recur to other authorities for proofs of what an author advances, I have taken care to establish, in a few words, the most important of those principles of the law of nature which I intended to apply to nations. But I have not always thought it necessary to trace them to their primary foundations for the purpose of demonstration, but have sometimes contented myself with supporting them by common truths which are acknowledged by every candid reader, without carrying the analysis any farther. It is sufficient for me to persuade, and for this purpose to advance nothing as a principle, that will not readily be admitted by every sensible man.

The law of nations is the law of sovereigns. It is principally for them and for their ministers that it ought to be written. All mankind are indeed interested in it; and, in a free country, the study of its maxims is a proper employment for every citizen: but it would be of little consequence to impart the knowledge of it only to private individuals, who are not called to the councils of nations, and who have no influence in directing the public measures. If the conductors of states, if all those who are employed in public affairs, condescended to apply seriously to the study of a science which ought to be their law, and, as it were, the compass by which to steer their course, what happy effects might we not expect from a good treatise on the law of nations! We every day feel the advantages of a good body of laws in civil society:—the law of nations is, in point of importance, as much superior to the civil law, as the proceedings of nations and sovereigns are more momentous in their consequences than those of private persons.

But fatal experience too plainly proves, how little regard those who are at the head of affairs pay to the <xix> dictates of justice, in conjunctures where they hope to find their advantage. Satisfied with bestowing their attention on a system of politics which is often false since often unjust, the generality of them think they have done enough when they have thoroughly studied that. Nevertheless we may truly apply to states a maxim which has long been acknowledged as true with respect to individuals,—that the best and safest policy is that which is founded on virtue. Cicero, as great a master in the art of government as in eloquence and philosophy, does not content himself with rejecting the vulgar maxim, that “a state cannot be happily governed without committing injustice”; he even proceeds so far as to lay down the very reverse of the proposition as an invariable truth, and maintains, that, “without a strict attention to the most rigid justice, public affairs cannot be advantageously administered.”^*

Providence occasionally bestows on the world kings and ministers whose minds are impressed with this great truth. Let us not renounce the pleasing hope that the number of those wise conductors of nations will one day be multiplied; and in the interim let us, each in his own sphere, exert our best efforts to accelerate the happy period.

It is principally with a view of rendering my work palatable to those by whom it is of the most importance that it should be read and relished, that I have sometimes joined examples to the maxims I advance: and in that idea I have been confirmed by the approbation of one of those ministers who are the enlightened friends of the human race, and who alone ought to be admitted into the councils of kings.² But I have been sparing in the use of such embellishments. Without ever aiming at a vain parade of erudition, I only sought to afford an occasional relaxation to the reader’s mind, <xx> or to render the doctrine more impressive by an example, and sometimes to shew that the practice of nations is conformable to the principles laid down: and whenever I found a convenient opportunity, I have, above all things, endeavoured to inspire a love of virtue, by shewing, from some striking passage of history, how amiable it is, how worthy of our homage in some truly great men, and even productive of solid advantage. I have quoted the chief part of my examples from modern history, as well because these are more interesting, as to avoid a repetition of those which have been already accumulated by Grotius, Puffendorf, and their commentators.

As to the rest, I have, both in these examples and in my reasonings, studiously endeavoured to avoid giving offence; it being my intention religiously to observe the respect due to nations and sovereign powers: but I have made it a still more sacred rule to respect the truth, and the interests of the human race. If, among the base flatterers of despotic power, my principles meet with opponents, I shall have on my side the virtuous man, the friend of the laws, the man of probity, and the true citizen.

I should prefer the alternative of total silence, were I not at liberty in my writings to obey the dictates of my conscience. But my pen lies under no restraint, and I am incapable of prostituting it to flattery. I was born in a country of which liberty is the soul, the treasure, and the fundamental law; and my birth qualifies me to be the friend of all nations. These favourable circumstances have encouraged me in the attempt to render myself useful to mankind by this work. I felt conscious of my deficiency in knowledge and abilities: I saw that I was undertaking an arduous task: but I shall rest satisfied if that class of readers whose opinions are entitled to respect, discover in my labours the traces of the honest man and the good citizen. <xxi>