亨利-梅因：国际法Lecture 2

und by the obligations of truth， justice， and humanity， in relation to other powers， as they are in the management of their own local concerns.

　　States， or bodies politic， are to be considered as moral persons， having a public will， capable and free to do right and wrong， inasmuch as they are collections of individuals， each of whom carries with him into the service of the community the same binding law of morality and religion which ought to control his conduct in private life. The Law of Nations is a complex system， composed of various ingredients. It consists of general principles of right and justice， equally suitable to the government of individuals in a state of natural equality， and to the relations and conduct of nations； of a collection of usages， customs， and opinions， the growth of civilization and commerce； and of a code of positive law.

　　In the absence of these latter regulations， the intercourse and conduct of nations are to be governed her principles fairly to deduced from the rights and duties of nations， and the nature of moral obligation； and we have the authority of the lawyers of antiquity， and of some of the first masters in the modern school of public law， for placing the moral obligation of nations and of individuals on similar grounds， and for considering individual and national morality as parts of one and the same science. The Law of Nations， so far as it is founded on the principles of Natural Law， is equally binding in every age and upon all mankind. But the Christian nations of Europe， and their descendants on this side of the Atlantic， by the vast superiority of their attainments in arts， and science， and commerce， as well as in policy and government； and. above all， by the brighter light， the more certain truths， and the more definite sanction which Christianity has communicated to the ethical jurisprudence of the ancients， have established a Law of Nations peculiar to themselves. They form together a community of nations united by religion， manners， morals， humanity， and science， and united also by the mutual

advantages of commercial intercourse， by the habit of forming alliances and treaties with each other， of interchanging ambassadors， and of studying and recognising the same writers and systems of public law.

　　This Jus Gentium of the Imperial jurisconsults is identical with the Law of Nature， or Natural Law， of many modern ethical and juridical writers； and both are， in fact， the law of God， made known somewhat dimly to the whole human race at all times， and set forth with unmistakable certainty and transcendent power in His revealed will. This is， in truth， the highest law by which moral beings can be governed； highest in its Lawgiver， who is omnipotent over each individual man， as well as over societies and states； highest in the absolute perfection of the rules which it contains； highest in the absolute cogency of the commands which it utters； highest in the absolute obligation of the duties which it enforces； highest in the absolute certainty and irresistible coercive power of the sanctions which it wields， and which operate upon the deepest spiritual nature of every human being.

　　It must be clear to you， I think， that writers who adhere to these opinions are not likely to trouble themselves greatly with the question of the original obligatory force of International Law. If the Law of Nations be binding on states considered as moral beings on account of its derivation from the Law of Nature or of God， states when in a healthy moral condition will defer to them as individual men do to the morality of the Ten Commandments. The whole question in fact， as laid down by liens， and with less moderation by Pomeroy， is a question of ethics， and all demand of a legislative sanction may be discarded. But now let us turn to the four volumes of the American International Digest edited by Dr. Francis Wharton. It is entitled， 'A Digest of the International Law of the United States，' and it consists of documents relating to that subject issued by Presidents and Secretaries of State， of the decisions of Federal Courts， and of the opinions of Attorneys-General. Among the propositions laid down in these volumes you will find the following， all of them accepted by the American Federal Government.

　　'The law of the United States ought not， if it be avoidable， so to be construed as to infringe on the common principles and usages of nations and the general doctrines of International Law. Even as to municipal matters the law should be so construed as to conform to the Law of Nations， unless the contrary be expressly prescribed. An Act of the Federal Congress ought never to be construed so as to violate the Law of Nations if any other possible construction remains， nor should it be construed to violate neutral rights or to affect neutral commerce， further than is warranted by the Law of Nations as understood in this country.' Again： 'The Law of Nations is part of the Municipal Law of separate states. The intercourse of the United States with foreign nations and the policy in regard to them being placed by the Constitution in the hands of the Federal Government， its decisions upon these subjects are by universally acknowledged principles of International Law obligatory on everybody. The Law of Nations， unlike foreign Municipal Law， does not have to be proved as a fact. The Law of Nations makes en integral part of the laws of the land. Every nation， on being received at her own request into the circle of civilised government， must understand that she not only attains rights of sovereignty and the dignity of national character， but that she binds herself also to the strict and faithful observance of all those principles， laws， and usages which have obtained currency amongst civilised states， and which have for their object the mitigation of the miseries of war. International Law is founded upon natural reason and justice， the opinions of writers of known wisdom， and the practice of civilised nations.'

　　Here you see

that according to American doctrine International Law has precedence both of Federal and of Municipal Law， unless in the exceptional case where Federal Law has deliberately departed from it. It is regarded by the American lawyers as having very much the same relation to Federal and State Law as the Federal Constitution has， and this no doubt is the reason why in so many famous American law books Constitutional Law and International Law are the first subjects discussed， International Law on the whole having precedence of Constitutional Law.

　　The principle on which these American doctrines of International Law repose is， I think， tolerably plain. The statesmen and jurists of the United States do not regard International Law as having become binding on their country through the intervention of any legislature. They do not believe it to be of the nature of immemorial usage， 'of which the memory of man runneth not to the contrary.' They look upon its rules as a main part of the conditions on which a state is originally received into the family of civilised nations. This view， though not quite explicitly set forth， does not really differ from that entertained by the founders of International Law， and it is practically that submitted to， and assumed to be a sufficiently solid basis for further inferences， by Governments and lawyers of the civilised sovereign communities of our day. If they put it in another way it would probably be that the state which disclaims the authority of International Law places herself outside the circle of civilised nations.

　　There is， however， one community which on one occasion went near to dissenting from the American opinion and from the assumptions which it involves. This was our own country， Great Britain. In one celebrated case， only the other day， the English judges， though by a majority of one only， forged their decision on a very different principle， and a special Act of Parliament was required to re-establish the authority of International Law on the footing on which the rest of the world had placed it. The case was one of great importance and interest， and it was argued before all the English judges in the Court of Criminal Appeal. It is known as the Queen v. Keyn， but is more popularly called the 'Franconia' Case （2 Ex. Div. 63）。 The 'Franconia，' a German ship， was commanded by a German subject， Keyn. On a voyage from Hamburg to the West Indies， when within two and a half miles from the beach at Dover， and less than two miles from the head of the Admiralty pier， the 'Franconia，' through the negligence， as the jury found， of Keyn， ran into the British ship 'Strathclyde，' sank her， and caused the death of one of her passengers. Keyn was tried for manslaughter， and was convicted at the Central Criminal Court； but the question then arose whether he had committed an offence within the jurisdiction of English tribunals.

　　The point on which that question turned was this. All the writers on International Law agree that some portion of the coast water of a country is considered for some purposes to belong to the country the coasts of which it washes. There is some difference of opinion between them as to the exact point to which this territorial water， which is considered as part of a country's soil， extends. This doctrine， however， if it were sound， must at some time or other have been borrowed by the English courts and lawyers from international authority. Previous to the appearance of International Law， the law followed in England was different. The great naval judicial authority was then the Admiral of England， whose jurisdiction was over all British subjects and other persons on board British ships on the high seas. If the doctrine of the international jurists prevailed， a change must， at some time or o

┨网页设计特效库┠ http://www。z┗co⊙l。com/网页特效/