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

sources of information, such are to be accepted as
belonging to the code of the Laws of Nations, as far as those principles
are uncontradicted by modern opinion.
In the second instance, those differences which may either overrule,
add to, or complete the public opinion of a past age, are to be
ascertained, (by those in whose hands such decisions rest,) by looking
to the wish of nations on these points; 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