第9章 ITS AUTHORITY AND SANCTION.(3)

In the absence of these latter regulationsthe intercourse and conductof nations are to be governed her principles fairly to deduced from the rightsand duties of nationsand the nature of moral obligationand we have theauthority of the lawyers of antiquityand of some of the first masters inthe modern school of public lawfor placing the moral obligation of nationsand of individuals on similar groundsand for considering individual andnational morality as parts of one and the same scienceThe Law of Nations,so far as it is founded on the principles of Natural Lawis equally bindingin every age and upon all mankindBut the Christian nations of Europeandtheir descendants on this side of the Atlanticby the vast superiority oftheir attainments in artsand scienceand commerceas well as in policyand governmentandabove allby the brighter lightthe more certain truths,and the more definite sanction which Christianity has communicated to theethical jurisprudence of the ancientshave established a Law of Nationspeculiar to themselvesThey form together a community of nations unitedby religionmannersmoralshumanityand scienceand united also by themutual advantages of commercial intercourseby the habit of forming alliancesand treaties with each otherof interchanging ambassadorsand of studyingand recognising the same writers and systems of public law.

This Jus Gentium of the Imperial jurisconsults is identical with the Lawof Natureor Natural Lawof many modern ethical and juridical writers;and both arein factthe law of Godmade known somewhat dimly to the wholehuman race at all timesand set forth with unmistakable certainty and transcendentpower in His revealed willThis isin truththe highest law by which moralbeings can be governedhighest in its Lawgiverwho is omnipotent over eachindividual manas well as over societies and stateshighest in the absoluteperfection of the rules which it containshighest in the absolute cogencyof the commands which it uttershighest in the absolute obligation of theduties which it enforceshighest in the absolute certainty and irresistiblecoercive power of the sanctions which it wieldsand which operate upon thedeepest spiritual nature of every human being.

It must be clear to youI thinkthat writers who adhere to these opinionsare not likely to trouble themselves greatly with the question of the originalobligatory force of International LawIf the Law of Nations be binding onstates considered as moral beings on account of its derivation from the Lawof Nature or of Godstates when in a healthy moral condition will deferto them as individual men do to the morality of the Ten CommandmentsThewhole question in factas laid down by liensand with less moderation byPomeroyis a question of ethicsand all demand of a legislative sanctionmay be discardedBut now let us turn to the four volumes of the AmericanInternational Digest edited by DrFrancis WhartonIt is entitled'A Digestof the International Law of the United States,and it consists of documentsrelating to that subject issued by Presidents and Secretaries of Stateofthe decisions of Federal Courtsand of the opinions of Attorneys-General.

Among the propositions laid down in these volumes you will find the following,all of them accepted by the American Federal Government.

'The law of the United States ought notif it be avoidableso to beconstrued as to infringe on the common principles and usages of nations andthe general doctrines of International LawEven as to municipal mattersthe law should be so construed as to conform to the Law of Nationsunlessthe contrary be expressly prescribedAn Act of the Federal Congress oughtnever to be construed so as to violate the Law of Nations if any other possibleconstruction remainsnor should it be construed to violate neutral rightsor to affect neutral commercefurther than is warranted by the Law of Nationsas understood in this country.Again'The Law of Nations is part of theMunicipal Law of separate statesThe intercourse of the United States withforeign nations and the policy in regard to them being placed by the Constitutionin the hands of the Federal Governmentits decisions upon these subjectsare by universally acknowledged principles of International Law obligatoryon everybodyThe Law of Nationsunlike foreign Municipal Lawdoes nothave to be proved as a factThe Law of Nations makes en integral part ofthe laws of the landEvery nationon being received at her own requestinto the circle of civilised governmentmust understand that she not onlyattains rights of sovereignty and the dignity of national characterbutthat she binds herself also to the strict and faithful observance of allthose principleslawsand usages which have obtained currency amongst civilisedstatesand which have for their object the mitigation of the miseries ofwarInternational Law is founded upon natural reason and justicethe opinionsof writers of known wisdomand the practice of civilised nations.'

Here you see that according to American doctrine International Law hasprecedence both of Federal and of Municipal Lawunless in the exceptionalcase where Federal Law has deliberately departed from itIt is regardedby the American lawyers as having very much the same relation to Federaland State Law as the Federal Constitution hasand this no doubt is the reasonwhy in so many famous American law books Constitutional Law and InternationalLaw are the first subjects discussedInternational Law on the whole havingprecedence of Constitutional Law.