12 ARGUMENT OF THE UNITED STATES. 



Iii 1753 the British Government made an answer to a memorial of the 

 Prussian Government which was termed by Montesquieu repcnse sans 

 replique, and which has been generally recognized as one of the ablest 

 expositions of international law ever embodied in a state paper. In 

 this memorable document "The Law ot Nations" is said to be founded 

 upon justice, equity, convenience, and the reason of the thing and con- 

 tinued by long usage. 



XXI. These two statements may be said to embrace the substance 

 of all that can be said on this subject. * * * 



XXII. Moral persons are governed partly by Divine law, * * * 



which includes natural law — partly, by positive instituted human law. 



# # # 



States, it has been said, are reciprocally recognized as moral per- 

 sons. States are therefore governed, in their mutual relations, partly 

 by Divine and partly by positive law. Divine law is either (1) that 

 which is written by the finger of God on the heart of man, when it is 

 called natural law ; or (2) that which has been miraculously made 

 known to him. * * * 



XXIII. The primary source, then, of international jurisprudence is 

 Divine law. 



XXVI. * * * Cicero maintains that God has given to all men 

 conscience and intellect; that where these exist, a law exists, of which 

 all men are common subjects. Where there is a common law, he argues, 

 there is a common right, binding more closely and visibly upon the mem- 

 bers of each separate state, but so knitting together the universe, u ut 

 jam universus hie mundus una civitas sit, communis Deorum atque liomi- 

 num existimandd? 



That law, this great jurist says, is immortal and unalterable by prince 

 or people. * * * 



XXXI. This would be called by many who have of late years written 

 on the science, international morality) they would restrict the term law 

 absolutely and entirely to the treaties, the customs, and the practice of 

 nations. 



If this were a mere question as to the theoretical arrangement of 

 the subject of international law, it would be of but little importance. 



* * * But it is of great practical importance to mark the sub- 

 ordination of the law derived from the consent of states to the law de- 

 rived from God. 



XXXII. * * * Another practical consequence is that the law 

 derived from the consent of Christian states is restricted in its opera- 

 tion by the divine law; and just as it is not morally competent to any 

 individual state to make laws which are at variance with the law of 

 God, whether natural or revealed, so neither is it morally competent to 

 any assemblage of states to make treaties or adopt customs which con- 

 travene that law. 



Positive law, whether national or international, being only declara- 

 tory, may add to, but can not take from, the prohibitions of divine 

 law. "Civilis ratio civilia quidem jura corrumpere potest, naturalia 

 von utique," is the language of Roman law; and is in harmony with 

 the voice of international jurisprudence as uttered by Wolff: "Absit 

 vero, ut existimes, jus gentium voluntarium ab earum voluntate itaprojis- 

 cisci, lit libera sit earum in eodem condendo voluntas, ct stet pro ratione 

 solo voluntas, nulla habita ratione juris naturalist 



XXXIII. This branch of the subject may be well concluded by the 

 invocation of some high authorities from the jurisprudence of all 

 countries in support of the foregoing opinion. 



