Chapter XIV: Sir H. Maine on the Law of Nations (3)

[322] "Historicus" (Letter in the _Times_, February 12, 1868)
writes--"The system of international law professes to be a
code of rules which ought to govern, and in fact in a great
degree _does govern_, the conduct of independent nations in
their dealings with one another.... How can one doubt that
in fact such a rule exists and does operate? Let us test the
matter by an example. When the news of the affair of the
_Trent_ reached England, what was the first question that
every one asked? Was it not this, 'Is this act conformable to
the law of nations, or is it not?' Did not the English Cabinet
summon all the most distinguished jurists to advise them
what the law of nations was? Was not the decision absolutely
dependent on their advice.... The code of the law of nations,
based on all other laws, on morality, deduced by the reasoning
of jurists from well established principles, illustrated by
precedents, gathered from usage, confirmed by experience, has
become from age to age more and more respected as the arbiter
of the rights and duties of nations, ... and now, after this
system has been elaborated with so much care, and has yielded
results so beneficial to the human race, we are to be told
that the only real question in differences between nations
is, 'Whether, all things considered, it is or _is not worth
while to go to war_?' not, be it observed, _right_ or _wrong_
to go to war. This is exactly the doctrine set forth in the
celebrated Thelian controversy recorded in Thucydides." W. Oke
Manning, "Commentaries on the Law of Nations" (p. 17), says,
"Sir J. Mackintosh in his 'Hist. of the Progress of Ethical
Philosophy' (prefixed to the 'Encyclopædia Britannica,'
p. 315), speaks of _Suarez_ as the writer who first saw
that international law was composed not only of the simple
principles of justice applied to intercourse between states,
but of those _usages long observed_ in that intercourse by the
European race which have since been more exactly distinguished
as the consuetudinary law acknowledged by the Christian
nations of Europe and America. But Suarez himself speaks of
this distinction as already recognised by previous writers."

[323] "La religion Chrétienne, qui ne semble avoir d'objet que
la félicité de l'autre vie, fait encore notre bonheur dans
celle-ci.... Que d'un côté, l'on se mette devant les yeux les
massacres continuels des rois et des chefs grecs et romains,
... et nous verrons que nous devons au Christianisme, et dans
le gouvernement un certain droit politique, et dans la guerre
un certain droit des gens, que la nature humaine ne saurait
assez reconnaître."--_Montesquieu, "Esprit des Lois_," i. xxiv.
chap. 3.