per se), while they consider themselves at liberty to evade, and this, too, with a safe conscience, such laws as make any thing an offence (malum prohibitum), which was not such before their enactment. For instance, theft is intrinsically a crime, in its nature; but smuggling is an offence made such by the enactment of law. This distinction, when made for the purpose of obeying one law, and evading or breaking another, is unquestionably unsound. The law of the land is one of the chief moral rules by which the conduct of all is to be squared, and with a very few exceptions, and those of a character clearly extraordinary, is morally binding_on_all.* CHAPTER VII. MORAL DUTIES OF THE UNITED STATES, REGARDED AS INDEPENDENT states, kingdoms, empires, commonwealths, all civil communities, under whatever name, are moral persons, endowed with understanding, will, and conscience, capable of merit or demerit, responsible for their acts, and charged with duties of various kinds. † The United States owe to one another all the duties prescribed by the Law of Nature and Nations, which independent nations owe to each other. The principle which lies at the foundation of these duties, says Montesquieu, is, that "different nations ought to do each other as much good in peace, and as little harm in war, as possible, without injury to their true interests." Lord Bacon says, "The Divine Law is the perfection both of the Law of Nature and Nations," and he applies the law of Christian charity, § and the law of our neighbour, || "which includes the Samaritan as well as the Levite," to the case of * See pp. 29-32, 100. L'Esprit des Lois, Book I. c. 3. + Vattel, Preliminary Principles, § 2. § "Lex charitatis," Matt. vii. 12. nations, and this he does to the exclusion of the principles of jurists, when the latter do not agree with the former. * Again; "In cases of doubt," says Chitty, "arising upon what is the Law of Nations, it is now an admitted rule amongst all European nations, that our common religion, Christianity, pointing out the principles of natural justice, should be equally appealed to and observed by all as an unfailing rule of construction." Finally, in 1815, the emperors of Austria and Russia, and the king of Prussia, "declared, in the face of the whole world, their fixed resolution, both in the administration of their respective states, and in their political relations with every other government, to take for their sole guide, the precepts of Christian charity and peace, which, far from being applicable only to private concerns, must have an immediate influence on the councils of princes, and guide all their undertakings, and as being the only means of consolidating human institutions and remedying their imperfections." Thus, these high authorities distinctly recognise Christian morals and the Christian religion, as the basis of the reciprocal duties of nations. Christianity, then, is the ultimate standard, to which, among Christian nations, international duties are to be referred, and the rule by which they are to be measured. Every Christian nation is bound to conduct towards every other, as it wishes that others should, in like circumstances, conduct towards itself. They are morally bound to respect the rights, and, in every reasonable way and degree, to consult the welfare and interests of one another. But Vattel has well said, "that it exclusively belongs to each nation to form its own judgment of what its own conscience prescribes to it; of what it can or cannot do; of what is proper, or improper, for it to do."§ Especially, they are to respect each other's freedom, independence, sovereignty, and rightful jurisdiction. One nation is to perform, in all good faith, the duties of neutrality towards other nations, which, unable to adjust their differences by peaceable means, have submitted them to the arbitration of the sword. No nation is permitted, * Works, Vol. II. pp. 289–294. 4to. London, 1765. Note to Vattel on the Law of Nations, Preliminary Principles, § 3. § Preliminary Principles, § 14, 16. by its duty, to interfere in the internal concerns of another nation. Every nation is entitled to manage its internal concerns in its own way, without the interference or dictation of another. Any interference of this kind tends to disturb friendly intercourse, and is just cause of offence. These duties, indeed, are too well understood to be often violated; but there is another, the violation of which is much more common; I refer to the case of one nation countenancing the infringement of the laws of another, and even lending the aid of its tribunals to carry such infringement into effect.* Assuredly, Mr. Justice Story well concludes, with Pothier, that such a practice is inconsistent with good morals, and sound views of international duties and obligations. "The natural and primary law is that of God and our conscience, the law which enjoins us to do good to our neighbour, whether in literal strictness he may have a perfect right to demand such treatment from us or not. This is a law that ought to be as strong in obligation as the most distinct and positive rule, though it may not always be capable of the same precise definition, nor consequently may allow the same remedies to enforce its observance. As an individual is bound by the law of nature to deal honorably and truly with other individuals, whether the precise acts required of him be or be not such as their own municipal law will enforce; just so a state, in its relations with other states, is bound to conduct itself in the spirit of justice, benevolence, and good faith, even though there be no positive rules of international law, by the letter of which it may be actually tied down. The same rules of morality which hold together men in families, and which form families into a commonwealth, also link together several commonwealths as members of the great society of mankind. Commonwealths, as well as private men, are liable to injury, and capable of benefit, from each other; it is, therefore, their duty to reverence, to practise, and to enforce those rules of justice, which control and restrain injury, which regulate and augment benefit, which preserve civilized states in a tolerable condition of security from wrong, and which, if they could be * See Story's "Commentaries on the Conflict of Laws," pp. 204, 205, 212. generally obeyed, would establish and permanently maintain, the well-being of the universal commonwealth of the human race."* The peculiar duties, which the United States owe to each other, chiefly respect the preservation of that harmony, which it is so essential to maintain among communities standing in a relation so very intimate to one another, and without which reflecting men have always foreseen, the union could not long subsist. It is the moral duty of the citizen to obey the laws; and, as the Constitution of the United States is the highest law known to the country, an observance of its obligations, becomes the highest rule of duty to the citizen next after the divine law. A constitutional duty, then, is a great moral duty, binding on the states as communities, and, of course, binding on the consciences of the individual citizens of which the State is composed. This cannot be denied, without falling into the absurd consequence, that what is binding on the body politic, is not binding on the members. But the duty of the States and of the citizens to maintain this harmony, which is the great object kept in view by the Constitution in those of its provisions which refer to the relation and intercourse of the coördinate States with each other, may be most successfully illustrated by reviewing the occasions, on which it has been most frequently violated, and on which future violations are most likely to occur. 1. One way in which this duty of cultivating harmony and maintaining friendly relations, has sometimes been violated is, by a course of unfriendly legislation by one State, calculated and intended to affect injuriously the interests of one or more of its sister States. Such a course arises from a real or supposed inconsistency of interests. Sometimes it has arisen from a wish, by one State, to obtain for its citizens exclusive advantages, which in reason equally belonged to other States.‡ Every thing of this kind rests on the ground, that the pecuniary interest of a State is its highest interest; when, viewed as a mere stroke of selfish policy, it is mistaken and short-sighted, as indeed are all violations of moral duty either by individuals or * Chitty, note to Vattel on the Law of Nations. - Prelim. Principles, § 10. See The Federalist, p. 116. Wheaton's Reports, Vol. ix. p. 1. communities. It is the duty of the States to coöperate with each other in every thing that pertains to the common good; and, while they consult their own interest, to have a generous regard for the interests of the other States. Indeed, this country has witnessed many gratifying instances, in which two or more States, forgetting all narrow and local interests, and laying aside all local jealousies, have cordially united in enterprises tending to the common good. And, while the States maintain a generous and honorable rivalship in regard to the acquisition of wealth, renown, and influence, let them carefully preserve an attitude of friendship and good-will; and let each and every one show herself studiously regardful of all the civilities, proprieties, and courtesies, which are due to one another from the members of a numerous sisterhood. 2. But harmony between the States is not in so much danger of being disturbed by the direct interference of one State with another, through selfish, unfriendly, and vexatious legislation, as by the officious and unwarrantable interference of individuals, and more especially of self-constituted societies. Societies may be, and in fact, as is well known, have been organized in some of the United States, designed to affect, perhaps to destroy, the institutions of other States, which the individuals associated suppose to be capable of improvement, or which, they may suppose, ought to be destroyed. All this is contrary to the moral duty of the individuals concerned; and, if such societies become dangerous to the peace and safety of the States whose institutions they are designed to affect, and especially when they become the subject of general and official complaint, and a source of discord, misunderstanding, and alarm, it seems to be the duty of the States in which they exist, to suppress them by the strong and decisive arm of the law.* Any interference of one nation with the institutions or concerns of another, however indirect, is always extremely delicate, calculated to excite distrust and misunderstanding, and is just cause of offence. Nor, in such a case, can the conduct of indi * See Governor Marcy's Message to the Legislature of New York, January, 1836, and the Report of a Select Committee to the Legislature of New Hampshire, on Abolition Societies, made and accepted in January, 1837. - |