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de faire tort a quelqu'un, d'aller contre son droit bien etabli.” There is a right to do all things that are not illegal in themselves or contrary to the absolute right of another person. For instance, you may kill an aggressor because he began the evil and has not an exclusive right to preserve his own life. But you must not kill a defenseless person for the purposes of food in a case of desperate necessity, unless he voluntarily consents to sacrifice himself for others.
VATTEL IS FULL of interest when he turns from the doctrine of human equality to the subject of women. He sees here, at any rate, no equality, nor has he, despite his suavity, any illusions. He sees nothing fundamental in the doctrine of monogamy. He denies that the laws of nature forbid plurality of wives, though he admits the inexpediency, in most cases, of polygamy. In certain cases, however, he admits its use and possibly its necessity, while he thinks that concubinage can quite well be legalized. He claims that a man should be allowed a divorce for sterility, and asserts that marriage is never indissoluble in itself, but that natural law imposes on us the obligation never to break it without strong and just reasons, especially if there are children. His treatment of this subject is a striking instance of the luminous way in which he applies the principle of utilitarianism to human problems. It is from the utilitarian standpoint that he goes on to inquire as to the person to whom authority belongs in marriage. It is curious that a question which is creating such unpleasant interest in the present day should have been discussed with such gusto more than a century and a half ago. M. de Vattel would not have been popular with the army of women who are demanding the franchise today. His cold reasoning and his uncompromising views on the superiority of the male sex would have caused pain in many sensitive hearts. He asserts that men are “plus capables-des affaires importantes, plus fermes, plus forts et plus courageux. Il paroit donc que la nature a destine la femme a vivre sous la protection du mari, et cette protection donne deja une superiorite.” Someone, says this jurist, even then trembling on the verge of matrimony, must lead, and that one must be the stronger. “Dans une pareille societe, dis-je celui qui est le plus capable ait le droit de decider, en cas de partage dans les sentimens.” Then follows the touch of sentiment that is intended to sweeten the bitter draught. The husband must use his superiority “avec douceur, avec sagesse et avec equite, pour l'avantage commun." But he adds, to cure all, “outre l'amour et les soins que le mari lui doit, elle a ses droits, qu'il est oblige de respecter.” Wolff's answer, of course, would have been that Vattel was begging the question, that he was constructing a universal argument from his own very imperfect knowledge of the past, when in fact the law of nature depends as much on the potentiality of women as on their actual achievement. You cannot, for instance, argue that there is a law of nature asserting that the negro is necessarily inferior to the Aryan. Wolff, in asserting the equality of the sexes, no doubt wrote as a theorist, while Vattel, in denying the equality, wrote as a practical utilitarian. But the weakness of the utilitarian position is that, while it necessarily depends on the appeal to experience, it invariably appeals to à very limited experience. If experience were exhaustive, the idealist and the utilitarian would be at one. But as it is, there can be no finality about the utilitarian position, which shifts in the direction of idealism as the ages pass and knowledge increases.
COMING now to his Law of Nations, and to his definitions: “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.” Such a society, we are told, is a moral person susceptible of obligations and rights. The law of nations is a science which teaches the rights subsisting between nations and the obligations corresponding to those rights. Nations are to be considered as so many free persons living together in the state of nature. The entire nation (whose common will is but the result of the united will of the citizens) remains subject to the laws of nature; consequently the law of nations is originally no other than the law of nature applied to nations. This application gives us the necessary law of nations called by Grotius “the international law of nations" and by other jurists "the natural law of nations.” Every treaty and every custom which contravenes the injunctions or prohibitions of the necessary law of nations is unlawful and condemned by the law of conscience even if validated by the external law. A nation is obliged to live on the same terms with other nations as an individual man was obliged, before the establishment of nations, to live with other men. A man when he joins a nation is still bound by his duties to the rest of mankind. Men, adds Vattel, are naturally equal, and a perfect equality prevails in their rights and obligations, as equally proceeding from nature.
VATTEL TELLS us that each individual nation is bound to contribute everything in her power to the happiness and perfection of all other nations. But each nation should be left in the peaceable enjoyment of that liberty which she inherits from Nature. It follows also from the natural equality of all men that nations, being composed of free persons living together in a state of nature, are naturally equal and inherit from Nature the same obligations and
rights. It also do not affect the derivative
rights. It also follows that a nation is mistress of her own actions so long as they do not affect the progress and perfects rights of any other nation. These and their derivatives are the natural Law of Nations. It is a necessary, a natural, an international law binding the national moral conscience. The external law corresponding to this internal law is the voluntary law deliberately adopted by nations, which, as supplemented by Conventional Law (that is to say, the law contained in treaties) and Customary Law, constitutes the Positive Law of Nations. This argument concludes with a characteristic passage: “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 fulfill her duty; but when there is a 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." This passage exhibits clearly enough the real difficulty that Vattel (and indeed his predecessors in thought) had not the courage to face. Vattel is in reality searching for a sanction to his law. He felt as strongly as Austin felt that a law involves a law-giver, and in fact he invents a sanction for the Positive Law of Nations by creating behind it the Interior Law of Nations. We see at once why he has to postulate a moral consciousness in a nation. It is necessary to find a sanction, and so in Kantian fashion, though in pre-Kantian days, he evolves his necessary laws that bind the consciousness of moral things that he has created. Unlike Frankenstein, he was not doomed to see these beings hurling aside their moral consciousness and their internal laws in the very name of the Natural Code that he, scarcely less than Rousseau, helped to frame; Napoleon Bonaparte was not yet rocking in his Corsican cradle when Emerich de Vattel was so complacently pondering on these things.
Having established what seemed to him the unimpugnable basis of the family of nations, Vattel with serene logic unfolded the necessary scheme of things. A nation, as he defines it, involves a Public Authority to order and direct what is to be done by each man in relation to the end of his association of men. "The political authority is the sovereignty; and he or they who are invested with it are the sovereign." There are three kinds of sovereignty-a Democracy or Popular Government, an Aristocratic Republic represented by a Senate, and a Monarchy represented by a single person. Since “to preserve and to perfect his own nature” is the sum of all the duties of a moral being to himself, so it must be with a nation. "The preservation of a nation consists in the duration of the political association by which it is formed,' and the perfection of a nation is found when everything in it must conspire “to pro
finally, a mutuaication to preserary to its presery of nature
cure for the citizens whatever they stand in need of for the necessities, the conveniences, and the accommodation of life, and, in general, whatever constitutes happiness with the peaceful possession of property, a method of obtaining justice with security, and, finally, a mutual defense against all external violence." A nation is under an obligation to preserve itself and its members, and it has a right to everything necessary to its preservation that is not unjust in itself or absolutely forbidden by the law of nature. “The second general duty of a nation towards itself is to labor at its own perfection and that of its state.” The individual citizen must also strive towards the end. Vattel points to England as the nation that has realized his ideals, and there is not a flicker of his diplomatic eye as he does so. Indeed, England-England in her eighteenth-century deadness and corruption is to him a standard nation.
WHATEVER DUTIES each man owes to other men, the same does each nation in its way owe to other nations. Therefore, one State owes to another State whatever it owes to itself, so far as that other stands in real need of assistance, and the former can grant it without neglecting the duties that it owes itself—“telle est la loi eternelle et immuable de la Nature.” Thus, he points out, the calamities of Portugal arising from the Lisbon earthquake gave England an opportunity of fulfilling the duties of humanity with that noble generosity which characterizes a great nation. But one nation must not force its good offices on another. Grotius asserted the general right to punish infamous behavior by other nations, but Vattel denies this unless the behavior directly affects the nation desiring to intervene. And, again, you have no right to compel another nation to help you. But the law of love applies. It is the duty of nations to love one another. In all this there is much that is interesting. The earthquake at Messina and the misconduct of the government responsible for the Congo horrors make Vattel's remarks as modern as may be. Again he asserts the general obligation of nations to trade with each other and he advocates the utmost freedom of trade, though, he adds, with his usual caution, that each nation must decide if the commerce in question is likely to be useful to it. He then lays down the rule that every nation is entitled to security, namely, to preserve herself from all injury and to prevent all intervention or interference in her private affairs. He is careful, however, to point out that the occupation of a nation does not exclude absolutely all rights of other nations in the territory. Everyone retains the right to obtain, if necessary, not only food and ships and other goods at a fair price, but also the right of intermarriage in order to secure the continuity of the nation. Women for this purpose, he adds, may be carried off. It is in this
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book that the subject of treaties, on which Vattel was the greatest living exponent in his age, is treated at length. It is not possible to deal with his special branch of law here, but Vattel's treatment of it is not likely to be forgotten. His advocacy of arbitration is likewise of very real importance, and may be of more value in the future than during the last century and a half.
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THE THIRD Book deals with war, which Vattel defines as “cet etat dans lequel on poursuit son droit par la force." Public war comes within the law of nature. Nature gives men a right to employ force when it is necessary for their defense, and for the preservation of their rights. But, as we have seen, society takes upon itself this duty and so has, for the time being, extinguished the right of private war. Thus the sovereign power alone has the right to make war. For this purpose he has the right to raise troops, and every citizen is bound to serve and defend the State so far as he is capable. No person is naturally exempt from taking up arms in defense of the State. But war must be just. The right of making war belongs to nations only as a remedy against injustice. Here once more Vattel gives us the ideal for the real. He knew well enough that wars on behalf of right and justice have been rare enough. He tells us of no remedy against unjust war. The only remedy is that great Republic of which Wolff dreamed and which today is again in the minds of men. But so insistent is Vattel on the necessity of maintaining peace that he insists on the necessity of a formal declaration of war-a res paenitentiae, so to speak. It is noticeable that this jurist gives us no lengthy discussion of the vexed problems of neutrality. His definition of contraband is, however, of real value: “Les choses qui sont d'un usage particulier pour la guerre, et dont on empeche le transport chez l'ennemi, s'appellent marchandises de contrebande." He goes on to deal with the rights of nations in war forbidding assassination and the use of poison ; with faith between enemies, acquisition by war, the right of postliminium, the rights of private persons in war; and, lastly, convention in war. The Fourth and last book deals with the Restoration of Peace and Embassies. The question of the asylum offered by an ambassador's house is discussed with care.
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LE DROIT DES GENS is certainly a work of the first magnitude. It modernized the whole theory and business of International Law, brought it out of the study into the field, the mart, the councilchamber, and the palace. The law of nations was no longer a mystery. One of its most brilliant practical exponents became its popularizer. He did, indeed, much for nations, for he imposed upon