The Laws of War, Affecting Commerce and Shipping | Page 3

and this wish may be exhibited in various ways; either by a universal abandonment of a given law, in its non-execution by any nation whatever, for a length of time; by numerous treaties, to obtain by convention an improvement not yet declared by international tribunals; or by extending to the relations and duties of nations, the improvements in the general principles of right and justice, that are at the time being applied to the concerns of private individuals.
The judges of such matters are not to ignore what is going on around them; all necessary knowledge is to be brought into court to discover what is the universal feeling of nations in respect of right and wrong, at the time they decide, and if they see a departure from the past sense of right and wrong, to make the modern, and not the ancient, the fountain of modern law; thence deducing the modern rules.
Because a precept cannot be found to be settled by the consent or practice of nations at one time, it is not to be concluded that it cannot be incorporated into the public code of nations, at some subsequent period. Nor is it to be admitted, that no precept belongs to the law of nations which is not universally recognised as such, by all civilized communities, or even by those constituting what may be called the Christian states of Europe. Some doctrines, which we, as well as the United States, admit to belong to the Law of Nations, are comparatively of recent origin and application, and even at this period have received no public or general sanction in other nations; and yet, inasmuch as they are founded on a just view of the duties and rights of nations, according to a modern universal sense of what is just, they are enforced here as ascertained laws.[1]
By a similar train of reasoning, not only may the international tribunals of England enunciate new rules of law, as universal law, if founded and fairly deduced from ascertained modern, public, and international opinion; but they may refuse to alter settled rules, however much opposed by other nations, provided those rules are still deducible from that origin.
Generally, every doctrine fairly deduced, by correct reasoning, from the rights and duties of nations, and the nature of moral obligation, may be said to exist in the Law of Nations. Those rights, duties, and that moral obligation, are to be ascertained from the enunciation of them in past times, unless they have been relaxed, waived, or altered by universal modern opinion.
We may regard, then, the Law of Nations to be a system of political ethics; not reduced to a written code, but to be sought for, (not founded,) in the elementary writings of publicists, judicial precedents, and general usage and practice; but continually open to change and improvement; as the views of men in general, change or improve, with regard to the questions--What is right? What is just?
Now to apply the above to one example.
Undoubtedly up to the present time the system of granting Letters of Marque to the adventurers of a power friendly to the enemy, has received the sanction of the world. These buccaneering adventurers have, under the laws of war, when taken, claimed and been allowed the rights of prisoners of war; have exercised all the privileges of regular privateers, and cast little or no responsibility on the countries they issued from, who still claimed to be entitled to the full position of neutral powers. Yet these unprincipled men differed from pirates in one respect only--that their infamous warfare was waged on one unhappy nation alone, instead of against the power of mankind. Uninfluenced by national feelings, their sole object was the plunder of the honest trader, and the means to that end--murder. Are there any modern principles of right and justice by which such persons are still to claim consideration? That there were such principles formerly, when the whole system of war was barbaric and unmerciful, cannot be doubted, unless such enemies were to be condemned when others equally bad were to be excused; but those reasons have now disappeared. Universal opinion is against these principles; numerous treaties have condemned the practice; the municipal laws of several states have made it punishable in their own subjects; America has even attempted, in two cases, to bring it in as piracy; and the highest authorities have pronounced it a crime.
Are not then the foundations of the laws that governed this case changed? It may be going too far to declare it piracy by the Law of Nations, but is it asking too much, in calling upon our maritime tribunals to proclaim the practice contrary to the Law of Nations; to deprive these privateers of the protection of neutrality, when in their native waters, and to