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The Law of Nations, “Preface” and “Preliminaries” 

 By Emer de Vattel

 1758

[de Vattel, Emer. “Preface” and “Preliminaries.” In The Law of Nations, Or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns, with Three Early Essays on the Origin and Nature of Natural Law and on Luxury. Edited and with an Introduction by Béla Kapossy and Richard Whitmore. Indianapolis: Liberty Fund. 2008. The Online Library of Liberty. Accessed 22 June 2010. http://oll.libertyfund.org/titles/2246. Used with permission of the Online Library of Liberty.]

Text in single-brackets ([ ]) are insertions of this website’s editors. Text in double-brackets ([[ ]]) are insertions of earlier editors. All footnotes are those of Vattel except where otherwise indicated by brackets.

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 being generally acknowledged and adopted by all civilised nations.[1] 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”:[2] 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.”[3] 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.”[4] 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 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.[5] 

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. The former discovers to us the law of nature, and the latter, the law of nations.”[6] 

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 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.”[7] 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.[8] He has not therefore separately treated of the law of nations, 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.[9] “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,[10] after each article of the law of nature, the application which may be 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.”[11] 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:[12] 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 it is just that we should hear what Wolf himself says in his Preface.[13] 

“Nations,”[14] 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 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 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[15] 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 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 Gentium, §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 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 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-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 observance 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 previous 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 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.”[16]

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.[17] 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, 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.

PRELIMINARIES

Idea and general Principles of the Law of Nations.

§1. What is meant by a nation or state. Nations or states are bodies politic, societies of men united together for the purpose of promoting their mutual safety and advantage by the joint efforts of their combined strength.

§2. It is a moral person. Such a society has her affairs and her interests; she deliberates and takes resolutions in common; thus becoming a moral person, who possesses an understanding and a will peculiar to herself, and is susceptible of obligations and rights.

§3. Definition of the law of nations. To establish on a solid foundation the obligations and rights of nations, is the design of this work. The law of nations is the science which teaches the rights subsisting between nations or states, and the obligations correspondent to those rights.

In this treatise it will appear, in what manner states, as such, ought to regulate all their actions. We shall examine the obligations of a people, as well towards themselves as towards other nations; and by that means we shall discover the rights which result from those obligations. For, the right being nothing more than the power of doing what is morally possible, that is to say, what is proper and consistent with duty,—it is evident that right is derived from duty, or passive obligation,—the obligation we lie under to act in such or such manner. It is therefore necessary that a nation should acquire a knowledge of the obligations incumbent on her, in order that she may not only avoid all violation of her duty, but also be able distinctly to ascertain her rights, or what she may lawfully require from other nations.

§4. In what light nations or states are to be considered. Nations being composed of men naturally free and independent, and who, before the establishment of civil societies, lived together in the state of nature,—nations or sovereign states are to be considered as so many free persons living together in the state of nature.

It is a settled point with writers on the natural law, that all men inherit from nature a perfect liberty and independence, of which they cannot be deprived without their own consent. In a state, the individual citizens do not enjoy them fully and absolutely, because they have made a partial surrender of them to the sovereign. But the body of the nation, the state, remains absolutely free and independent with respect to all other men, all other nations, as long as it has not voluntarily submitted to them.

§5. To what laws nations are subject. As men are subject to the laws of nature,—and as their union in civil society cannot have exempted them from the obligation to observe those laws, since by that union they do not cease to be men,—the entire nation, whose common will is but the result of the united wills of the citizens, remains subject to the laws of nature, and is bound to respect them in all her proceedings. And since right arises from obligation, as we have just observed (§3), the nation possesses also the same rights which nature has conferred upon men in order to enable them to perform their duties.

§6. In what the law of nations originally consists. We must therefore apply to nations the rules of the law of nature, in order to discover what their obligations are, and what their rights: consequently the law of nations is originally no other than the law of nature applied to nations. But as the application of a rule cannot be just and reasonable unless it be made in a manner suitable to the subject, we are not to imagine that the law of nations is precisely and in every case the same as the law of nature, with the difference only of the subjects to which it is applied, so as to allow of our substituting nations for individuals. A state or civil society is a subject very different from an individual of the human race: from which circumstance, pursuant to the law of nature itself, there result, in many cases, very different obligations and rights; since the same general rule, applied to two subjects, cannot produce exactly the same decisions, when the subjects are different; and a particular rule which is perfectly just with respect to one subject, is not applicable to another subject of a quite different nature. There are many cases, therefore, in which the law of nature does not decide between state and state in the same manner as it would between man and man. We must therefore know how to accommodate the application of it to different subjects; and it is the art of thus applying it with a precision founded on right reason, that renders the law of nations a distinct science.[18]

§7. Definition of the necessary law of nations. We call that the necessary law of nations which consists in the application of the law of nature to nations. It is necessary, because nations are absolutely bound to observe it. This law contains the precepts prescribed by the law of nature to states, on whom that law is not less obligatory than on individuals, since states are composed of men, their resolutions are taken by men, and the law of nature is binding on all men, under whatever relation they act. This is the law which Grotius, and those who follow him, call the internal law of nations, on account of its being obligatory on nations in point of conscience. Several writers term it the natural law of nations.

§8. It is immutable. Since therefore the necessary law of nations consists in the application of the law of nature to states,—which law is immutable, as being founded on the nature of things, and particularly on the nature of man,—it follows, that the necessary law of nations is immutable.

§9. Nations can make no change in it, nor dispense with the obligations arising from it. Whence, as this law is immutable, and the obligations that arise from it necessary and indispensable, nations can neither make any changes in it by their conventions, dispense with it in their own conduct, nor reciprocally release each other from the observance of it.

This is the principle by which we may distinguish lawful conventions or treaties from those that are not lawful, and innocent and rational customs from those that are unjust or censurable.

There are things, just in themselves, and allowed by the necessary law of nations, on which states may mutually agree with each other, and which they may consecrate and enforce by their manners and customs. There are others, of an indifferent nature, respecting which, it rests at the option of nations to make in their treaties whatever agreements they please, or to introduce whatever custom or practice they think proper. But every treaty, every custom, which contravenes the injunctions or prohibitions of the necessary law of nations, is unlawful. It will appear, however, in the sequel, that it is only by the internal law, by the law of conscience, such conventions or treaties are always condemned as unlawful,—and that, for reasons which shall be given in their proper place, they are nevertheless often valid by the external law. Nations being free and independent,—though the conduct of one of them be illegal and condemnable by the laws of conscience, the others are bound to acquiesce in it, when it does not infringe upon their perfect rights. The liberty of that nation would not remain entire, if the others were to arrogate to themselves the right of inspecting and regulating her actions;—an assumption on their part, that would be contrary to the law of nature, which declares every nation free and independent of all the others.

§10. Society established by nature between all mankind . . . ; Man is so formed by nature, that he cannot supply all his own wants, but necessarily stands in need of the intercourse and assistance of his fellow-creatures, whether for his immediate preservation, or for the sake of perfecting his nature, and enjoying such a life as is suitable to a rational being. This is sufficiently proved by experience. We have instances of persons, who, having grown up to manhood among the bears of the forest, enjoyed not the use of speech or of reason, but were, like the brute beasts, possessed only of sensitive faculties. We see moreover that nature has refused to bestow on men the same strength and natural weapons of defence with which she has furnished other animals,—having, in lieu of those advantages, endowed mankind with the faculties of speech and reason, or at least a capability of acquiring them by an intercourse with their fellow-creatures. Speech enables them to communicate with each other, to give each other mutual assistance, to perfect their reason and knowledge; and having thus become intelligent, they find a thousand methods of preserving themselves, and supplying their wants. Each individual, moreover, is intimately conscious that he can neither live happily nor improve his nature without the intercourse and assistance of others. Since, therefore, na-ture has thus formed mankind, it is a convincing proof of her intention that they should communicate with and mutually aid and assist each other.

Hence is deduced the establishment of natural society among men. The general law of that society is, that each individual should do for the others every thing which their necessities require, and which he can perform without neglecting the duty that he owes to himself: a law which all men must observe in order to live in a manner consonant to their nature, and conformable to the views of their common creator,—a law which our own safety, our happiness, our dearest interests, ought to render sacred to every one of us. Such is the general obligation that binds us to the observance of our duties: let us fulfil them with care, if we would wisely endeavour to promote our own advantage.

It is easy to conceive what exalted felicity the world would enjoy, were all men willing to observe the rule that we have just laid down. On the contrary, if each man wholly and immediately directs all his thoughts to his own interest, if he does nothing for the sake of other men, the whole human race together will be immersed in the deepest wretchedness. Let us therefore endeavour to promote the general happiness of mankind: all mankind, in return, will endeavour to promote ours; and thus we shall establish our felicity on the most solid foundations.

§11. . . . and between nations. The universal society of the human race being an institution of nature herself, that is to say, a necessary consequence of the nature of man,—all men, in whatever stations they are placed, are bound to cultivate it, and to discharge its duties. They cannot liberate themselves from the obligation by any convention, by any private association. When, therefore, they unite in civil society for the purpose of forming a separate state or nation, they may indeed enter into particular engagements towards those with whom they associate themselves; but they remain still bound to the performance of their duties towards the rest of mankind. All the difference consists in this, that, having agreed to act in common, and having resigned their rights and submitted their will to the body of the society, in every thing that concerns their common welfare,—it thenceforward belongs to that body, that state, and its rulers, to fulfil the duties of humanity towards strangers, in every thing that no longer depends on the liberty of individuals; and it is the state more particularly that is to perform those duties towards other states. We have already seen (§5) that men united in society remain subject to the obligations imposed upon them by human nature. That society, considered as a moral person, since possessed of an understanding, volition, and strength peculiar to itself, is therefore obliged to live on the same terms with other societies or states, as individual man was obliged, before those establishments, to live with other men, that is to say, according to the laws of the natural society established among the human race, with the difference only of such exceptions as may arise from the different nature of the subjects.

§12. The object of this society of nations. Since the object of the natural society established between all mankind is that they should lend each other mutual assistance in order to attain perfection themselves and to render their condition as perfect as possible,—and since nations, considered as so many free persons living together in a state of nature, are bound to cultivate human society with each other,—the object of the great society established by nature between all nations is also the interchange of mutual assistance for their own improvement and that of their condition.

§13. General obligation imposed by it. The first general law that we discover in the very object of the society of nations, is that each individual nation is bound to contribute every thing in her power to the happiness and perfection of all the others.[19]

§14. Explanation of this observation. But the duties that we owe to ourselves being unquestionably paramount to those we owe to others,—a nation owes herself in the first instance, and in preference to all other nations, to do every thing she can to promote her own happiness and perfection. (I say every thing she can, not only in a physical but in a moral sense,—that is, every thing that she can do lawfully, and consistently with justice and honour.) When therefore she cannot contribute to the welfare of another nation without doing an es-sential injury to herself, her obligation ceases on that particular occasion, and she is considered as lying under disability to perform the office in question.

§15. The second general law is the liberty and independence of nations. Nations being free and independent of each other, in the same manner as men are naturally free and independent, the second general law of their society is, that each nation should be left in the peaceable enjoyment of that liberty which she inherits from nature. The natural society of nations cannot subsist, unless the natural rights of each be duly respected. No nation is willing to renounce her liberty: she will rather break off all commerce with those states that should attempt to infringe upon it.

§16. Effect of that liberty. As a consequence of that liberty and independence, it exclusively belongs to each nation to form her own judgment of what her conscience prescribes to her,—of what she can or cannot do,—of what it is proper or improper for her to do: and of course it rests solely with her to examine and determine whether she can perform any office for another nation without neglecting the duty which she owes to herself. In all cases, therefore, in which a nation has the right of judging what her duty requires, no other nation can compel her to act in such or such particular manner: for any attempt at such compulsion would be an infringement on the liberty of nations. We have no right to use constraint against a free person except in those cases where such person is bound to perform some particular thing for us, and for some particular reason which does not depend on his judgment,—in those cases, in short, where we have a perfect right against him.

§17. Distinctions between internal and external, perfect and imperfect obligations and rights. In order perfectly to understand this, it is necessary to observe, that the obligation, and the right which corresponds to or is derived from it, are distinguished into external and internal. The obligation is internal, as it binds the conscience, and is deduced from the rules of our duty: it is external, as it is considered relatively to other men, and produces some right between them. The internal obligation is always the same in its nature, though it varies in degree: but the external obligation is divided into perfect and imperfect; and the right that results from it is also perfect or imperfect. The perfect right is that which is accompanied by the right of compelling those who refuse to fulfil the correspondent obligation; the imperfect right is unaccompanied by that right of compulsion. The perfect obligation is that which gives to the opposite party the right of compulsion; the imperfect gives him only a right to ask.

It is now easy to conceive why the right is always imperfect, when the correspondent obligation depends on the judgment of the party in whose breast it exists: for if, in such a case, we had a right to compel him, he would no longer enjoy the freedom of determination respecting the conduct he is to pursue in order to obey the dictates of his own conscience. Our obligation is always imperfect with respect to other people, while we possess the liberty of judging how we are to act: and we retain that liberty on all occasions where we ought to be free.

§18. Equality of nations. Since men are naturally equal, and a perfect equality prevails in their rights and obligations, as equally proceeding from nature,—nations composed of men, and considered as so many free persons living together in the state of nature, are naturally equal, and inherit from nature the same obligations and rights. Power or weakness does not in this respect produce any difference. A dwarf is as much a man as a giant; a small republic is no less a sovereign state than the most powerful kingdom.

§19. Effect of that equality. By a necessary consequence of that equality, whatever is lawful for one nation, is equally lawful for any other; and whatever is unjustifiable in the one, is equally so in the other.

§20. Each nation is mistress of her own actions when they do not affect the perfect rights of others. A nation then is mistress of her own actions so long as they do not affect the proper and perfect rights of any other nation,—so long as she is only internally bound, and does not lie under any external and perfect obligation. If she makes an ill use of her liberty, she is guilty of a breach of duty; but other nations are bound to acquiesce in her conduct, since they have no right to dictate to her.

§21. Foundation of the voluntary law of nations. Since nations are free, independent, and equal,—and since each possesses the right of judging, according to the dictates of her conscience, what conduct she is to pursue in order to fulfil her duties,—the effect of the whole is, to produce, at least externally and in the eyes of mankind, a perfect equality of rights between nations, in the administration of their affairs and the pursuit of their pretensions, without regard to the intrinsic justice of their conduct, of which others have no right to form a definitive judgment; so that whatever may be done by any one nation, may be done by any other; and they ought, in human society, to be considered as possessing equal rights.

Each nation in fact maintains that she has justice on her side in every dispute that happens to arise: and it does not belong to either of the parties interested, or to other nations, to pronounce a judgment on the contested question. The party who is in the wrong is guilty of a crime against her own conscience: but as there exists a possibility that she may perhaps have justice on her side, we cannot accuse her of violating the laws of society.

It is therefore necessary, on many occasions, that nations should suffer certain things to be done, though in their own nature unjust and condemnable; because they cannot oppose them by open force, without violating the liberty of some particular state, and destroying the foundations of their natural society. And since they are bound to cultivate that society, it is of course presumed that all nations have consented to the principle we have just established. The rules that are deduced from it, constitute what Monsieur Wolf calls “the voluntary law of nations”; and there is no reason why we should not use the same term, although we thought it necessary to deviate from that great man in our manner of establishing the foundation of that law.

§22. Right of nations against the infractors of the law of nations. The laws of natural society are of such importance to the safety of all states, that, if the custom once prevailed of trampling them under foot, no nation could flatter herself with the hope of preserving her national existence, and enjoying domestic tranquillity, however attentive to pursue every measure dictated by the most consummate prudence, justice, and moderation.[20] Now all men and all states have a perfect right to those things that are necessary for their preservation, since that right corresponds to an indispensable obligation. All nations have therefore a right to resort to forcible means for the purpose of repressing any one particular nation who openly violates the laws of the society which nature has established between them, or who directly attacks the welfare and safety of that society.

§23. Measure of that right. But care must be taken not to extend that right to the prejudice of the liberty of nations. They are all free and independent, but bound to observe the laws of that society which nature has established between them; and so far bound, that, when any one of them violates those laws, the others have a right to repress her. The conduct of each nation, therefore, is no farther subject to the controul of the others, than as the interests of natural society are concerned. The general and common right of nations over the conduct of any sovereign state is only commensurate to the object of that society which exists between them.

§24. Conventional law of nations, or law of treaties. The several engagements into which nations may enter, produce a new kind of law of nations, called conventional, or of treaties. As it is evident that a treaty binds none but the contracting parties, the conventional law of nations is not a universal but a particular law. All that can be done on this subject in a treatise on the law of nations, is to lay down those general rules which nations are bound to observe with respect to their treaties. A minute detail of the various agreements made between particular nations, and of the rights and obligations thence resulting, is matter of fact, and belongs to the province of history.

§25. Customary law of nations. Certain maxims and customs consecrated by long use, and observed by nations in their mutual intercourse with each other as a kind of law, form the customary law of nations, or the custom of nations. This law is founded on a tacit consent, or, if you please, on a tacit convention of the nations that observe it towards each other. Whence it appears that it is not obligatory except on those nations who have adopted it, and that it is not universal, any more than the conventional law. The same remark, therefore, is equally applicable to this customary law, viz. that a minute detail of its particulars does not belong to a systematic treatise on the law of nations, but that we must content ourselves with giving a general theory of it,—that is to say, the rules which are to be observed in it, as well with a view to its effects, as to its substance: and, with respect to the latter, those rules will serve to distinguish lawful and innocent customs from those that are unjust and unlawful.

§26. General rule respecting that law. When a custom or usage is generally established, either between all the civilised nations in the world, or only between those of a certain continent, as of Europe, for example, or between those who have a more frequent intercourse with each other,—if that custom is in its own nature in-different, and much more, if it be useful and reasonable, it becomes obligatory on all the nations in question, who are considered as having given their consent to it, and are bound to observe it towards each other, as long as they have not expressly declared their resolution of not observing it in future. But if that custom contains any thing unjust or unlawful, it is not obligatory: on the contrary, every nation is bound to relinquish it, since nothing can oblige or authorise her to violate the law of nature.

§27. Positive law of nations. These three kinds of law of nations, the voluntary, the conventional, and the customary, together constitute the positive law of nations. For they all proceed from the will of nations,—the voluntary from their presumed consent, the conventional from an express consent, and the customary from tacit consent: and as there can be no other mode of deducing any law from the will of nations, there are only these three kinds of positive law of nations.

We shall be careful to distinguish them from the natural or necessary law of nations, without, however, treating of them separately. But after having, under each individual head of our subject, established what the necessary law prescribes, we shall immediately add how and why the decisions of that law must be modified by the voluntary law; or (which amounts to the same thing in other terms) we shall explain how, in consequence of the liberty of nations, and pursuant to the rules of their natural society, the external law, which they are to observe towards each other, differs in certain instances from the maxims of the internal law, which nevertheless remain always obligatory in point of conscience. As to the rights introduced by treaties or by custom, there is no room to apprehend that any one will confound them with the natural law of nations. They form that species of law of nations which authors have distinguished by the name of arbitrary.

§28. General maxim respecting the use of the necessary and the voluntary law. To furnish the reader beforehand with a general direction respecting the distinction between the necessary and the voluntary law, let us here observe, that, as the necessary law is always obligatory on the conscience, a nation ought never to lose sight of it in deliberating on the line of conduct she is to pursue in order to fulfil her duty: but when there is question of examining what she may demand of other states, she must consult the voluntary law, whose maxims are devoted to the safety and advantage of the universal society of mankind.