object for which his labour will be willingly undertaken; and the capitalist, by enabling him to do this, not only makes the greatest possible profit for himself, but sets in motion the greatest quantity of national labour which, under existing wants and circumstances, can be employed; though not the greatest quantity which might have been set in motion, if those wants and circumstances, had been different: and it will be easily seen that these exceptions depend on the same principle as the rule or comparative scale itself; namely, upon the principle of superior profit, upon the great maxim, that what pays the capitalist most amply, is also the most beneficial to the state: the same principle too it is which in this as well as in all other employments of capital, determines the stage or point where one kind of traffic ceases to be most beneficial, and where those kinds of traffic which may be below it in any abstract scale, begin to, be practicably preferable under the existing circumstances.

CHAP. II.

Of the Commercial Law of Nations in general; and of the natural and positive Law, whether universal, customary, or conventional; and, in particular, of Treaties, and their Construction.

THE intercourse of commerce affording, as we have seen, a mutual and incalculable advantage to the states that engage in it, has been provided for and protected by laws almost from the beginning of civilized society. Our object will now be to inquire what legal principles and rules have been established with respect to commerce. In considering these principles and rules of commercial law, we are first to inquire how the commerce of any country, and of our own in particular, may be affected by the acts of foreign states; next, how the commerce of our own country in particular is publicly affected by her own political regulations; and lastly, how such commerce is affected by those municipal regulations which relate merely to the private interests of trade : and we shall then consider the instruments and securities employed to facilitate commerce; and close our inquiries by examining the remedies for injuries to commercial rights. The first of these inquiries will lead us to take a concise view of the law of nations in general; for it is obvious that the commerce of a country can never be lawfully affected by any act of a foreign state, unless that act be enjoined, or at least authorized, by the law of nations. The law of nations comprehends the principles of national independence, the intercourse of nations in peace, the privileges of ambassadors, consuls, and inferior ministers; the commerce of the subjects of each state with those of the others, the grounds of just war and the modes of conducting it, the mutual duties of belligerent and neutral powers, the limit of lawful hostility, the rights of conquest, the faith to be observed in warfare, the force of an armistice, of safe-conducts and passports, the nature and obligation of alliances, the means of

Definition.

These and many other important subjects, forming a complete practical system of the law of nations, and obviously most materially affecting commerce, are first to be considered. The knowledge of them is necessary to negotiators and statesmen, and may frequently be important to private men in various situations in which they may be placed.

The law of nations is defined to be the science which teaches the rights subsisting between nations or states, and the obligations correspondent to those rights; which modifies the intercourse of independent commonwealths in peace, and prescribes limits to their hostility in war (1). This law is naturally founded on the principle that the different nations ought to do to each other, in time of peace, as much good, and in time of war as little harm, as may be possible, without injuring their proper real interests (2).

It has been observed, that the law of nations at present established owes its existence in a great measure, to the conciliating and humanizing influence of the christian religion. And it is not amongst the least of the innumerable blessings which that faith has conferred upon the world, that it has established the intercourse of a great part of mankind upon one common basis of generally acknowledged duties, and abolished those wild, capricious, and sanguinary customs, which previously existed even amongst nations so highly civilized as the Romans and the Carthaginians (3). In later and happier times, having been drawn more closely together by the belief of one religion, the nations of Europe have been induced to agree upon a certain code, for their mutual regulation; and in all cases of doubt and disagreement, arising upon that code, their common religion, that of christianity, points out the same principles of natural justice, to be equally appealed to by all, as the unfailing rule of construction.

It is true that, in our own time, for practical purposes, the law of nations has for awhile been of little avail among the states of Europe. The circumstances of the last twenty-five years have

(1) Vattel's Prelim. p. 55. s. 3. Mackintosh, Disc. 3, 4.

(2) Montesq. de l'Esprit des

Lois, liv. 1. c. 3.

(3) 2 Ward's Law of Nations, 1-11. 339, 340.

been of so extraordinary and so gloomy a colour, that, in the anarchy of revolution and confusion of conquest, principles which had stood fixed for centuries, have been shaken from their foundations. We must observe, that in every age the law of nations must be less secure from violation than the municipal law of a particular state; because the municipal law is upheld by the sovereign power of the realm, which is equally exalted above the individual committing, and the individual sustaining the injury; and which punishes the first and lightest infraction of every rule, before disorder gathers strength to destroy. The law of nations is, among nations, what the municipal law of a state is among the subjects of that state: but then there is no sovereign power among nations to uphold the international law: there is no tribunal to which the oppressed may appeal against the

oppressor.

This is a defect inherent in the constitutions of all international codes, and it has been felt with more than usual severity in modern Europe, because even the slight check which at any former time existed to prevent the injustice of particular states (the check provided by the general anxiety of governments to preserve the balance of power against individual usurpation) for a time was suspended, and the immense and overpowering force of a single people was able to triumph alike over the opposition of the weak and the opinion of the wise. Among the various aggressions which the stupendous power of our enemy enabled him to commit for awhile with impunity, none were more remarkable for the acrimony of their spirit or for the mischievousness of their consequences, than the violent measures which he employed, throughout the countries under his control, to debar them from the advantages of a freely circulating commerce: but the injustice of those measures, revolting against the established principles of the law of nations, at length roused the states of Europe to unite in one common cause, and to restore and again bring into action those rules of the commercial law of nations which we are now to consider.

of nations.

The law of nations has been variously subdivided by different Division of law writers; and perhaps there is no distribution clearer than that of M. de Vattel, who admits two kinds of international law, the

The natural law of nations.

The positive or secondary law of nations.

The natural or primary law is that of God and our conscience: the law which enjoins us to do good to our neighbour, whether, in literal strictness, he may have a perfect right to demand such treatment from us or not (1). This is a law of as strong obligation as the most distinct and positive rule; though it may not be always capable of the same precise definition, nor, consequently, may allow the same remedies to enforce its observance. As an individual is bound by the law of nature to deal honourably and truly with other individuals, whether the precise acts required of him be or be not such as their own municipal law will enforce; just so a state, in its relations with other states, is bound to conduct herself in the spirit of justice, benevolence, and good faith, even though there be no positive rules of international law, by the letter of which she may be actually tied down. The same rules of morality which hold together men in families, and which form families into a commonwealth, also link together commonwealths as members of the great society of mankind. Commonwealths, as well as private men, are liable to injury and capable of benefit from each other; it is, therefore, their duty to reverence, to practise, and to enforce those rules of justice which control and restrain injury, which regulate and augment benefit, which preserve civilized states in a tolerable condition of security from wrong, and which, if they could be generally obeyed, would establish and permanently maintain the well-being of the universal commonwealth of the human race (2). This natural law has been called by Vattel the necessary law, because nations are absolutely bound in conscience to observe it; and by Grotius it has been entitled the internal law, because it is obligatory on nations in point of conscience (3).

The positive or secondary law is threefold (4): first, the universal voluntary law, or those rules which are presumed to be law, by the uniform practice of nations in general, and by the manifest utility of the rules themselves (5). Secondly, the customary law, or that which, from motives of convenience, has, by

(1) Vattel, Prelim. 58. 60. Peake's Rep. 116. 2 Hen. Bla. 259.

(2) Mackintosh, Disc. 7.

(3) Vattel, 68. s. 7.

(4) Vattel, Prelim. 66. s. 27. (5) Vattel, Prelim. p. 64. 66. s. 27.