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
