large portions of the globe, and having no fixed. property in land, cannot, by any such close social union, protect all the rights of which man is capable or susceptible. And we can scarcely conceive a state, without a determinate territory, within which, whoever takes up his abode, necessarily subjects himself to the laws and customs therein established.

Instead then of contemplating as we formerly did, individuals living together in society, or as more intimately connected by the ties of family and kindred, the result of the distinction of sex, and of the mode in which the human species is procreated and perpetuated, we now contemplate in relation to each other, those organized societies or communities, which are created by the social union. These aggregate bodies, we find, constitute as well as individuals, separate physical persons, capable as well as individual men, of independent action, towards each other. With regard to the descriptions of actions, of which they are thus capable, and the regulation of these actions, we find them bearing moral, and legal, or juridical relations to each other; in other words, possessing certain rights, and subject to certain reciprocal obligations. And as the principal of these rights, we find, that like individual men, these aggregate bodies have a right over their own actions, and a right to certain external objects within their reach or power, for their subsistence and other such purposes; in other words, have a right to undertake engagements, or to contract, and a right to acquire property.

Farther, to revert to the descriptions of actions, of

which such aggregate bodies of men are capable, we find from experience, as just observed, that there exist among them, as well as among individual men, certain relations to each other, with regard to their reciprocal conduct, whether in a rude, or in a more civilized state; that some of their actions with reference to each other, are morally right, and highly praise-worthy, but cannot be enforced; that others are not only morally right, but may have the performance of them compelled by coercion; and that others are not only morally wrong, but may be prohibited and prevented by resistance, and other forcible means. The last two of these three descriptions of actions constitute the sphere; and the rules for the regulation of them, constitute the component parts of international law, as distinct from the morality of nations in relation to each other.

The knowledge of these rules appears to be acquired, not a priori from any innate or connate ideas, or from any abstraction or mere operation of the mental faculties confined to themselves; but from observation and experience, from the exercise of the faculties, with which mankind are endowed, upon the objects and events, which are situated, or take place around them. Some of those rules are so obvious, as, though frequently neglected and violated, especially in barbarous times, to be nevertheless perceived, and indirectly recognised, in almost all stages of society, after mankind have begun to cultivate the earth. And although for a time neglected or violated, like the similar rules applicable to individuals congregated into communities, they

also come, in the progress of civilization, to be more distinctly recognised, and to a certain extent, observed and acted upon. Such observance is found to be advantageous, not only for the particular nation, but for all those nations generally, who, from vicinity, or other causes, have frequent intercourse. The rules of reciprocal conduct, resulting from the relative situation in which mankind, associated in communities, are placed, on this globe, come in time to be adopted in the shape of usages and customs, and to be supported by the majority of states, having intercourse with each other. The utility, too, of conventions or contracts in civil life, is found to extend also to the intercourse of nations; and various rules come to be fixed, between, or among independent states, by express stipulation and treaty.

From the preceding observations it appears, how there may exist a science of the law of nations, namely, that of the juridical rights of nations among themselves, or in relation to each other; and how it is distinguished from public or constitutional law, which unfolds the rights of the supreme power of a state. Public or constitutional law separates the social body into two, physical and moral, or legal persons, the sovereign and the people. International law assumes the whole social body united, as one physical, or moral, or legal person, and investigates only its relations, to other such persons, who are extraneous or foreign to it.*

But it may here be proper to investigate, and illustrate more fully, the range, or sphere, and the legitimate

* Schmalz, Das Europäische Völkerrecht, Buch I. S. 8.

sources of international law. Besides the rules of justice, which are chiefly of a negative description,— neminem lædere, suum cuique tribuere,-which are applicable to independent nations, from their nature as such, from the circumstances in which they are located on this globe, and from their urgently expedient, if not absolutely necessary, intercourse with each other, there exist a great multiplicity and latitude of actions and proceedings, not merely possible, but shown by experience to be practicable, which are optional, and to be directed by the will and consent of these nations. And there is thus ample room for having such proceedings regulated, either by express consent in treaties, or by the consent implied in long established customs and usages.

In the course of the last three centuries, the reciprocal rights and conduct of the European nations towards each other, have come to be very much regulated by special conventions or treaties. But these, although they embrace and provide for a great variety of cases, and, from great similarity of provisions, admit of classification and scientific arrangement, are of themselves binding only on the contracting parties. And the greatest part of the general law of nations has been introduced by, or grown up through, and rests upon, established customs and usages, adopting and sanctioning legal principles, and fixing rules of practice where such principles may not apply, founded on the constitution and circumstances of mankind, and deduced from observation and experience.

In the same way as among the citizens of a state, or the subjects of a realm, so also among the nations who

inhabit contiguous territories, or have frequent intercourse with each other, there come to be adopted gradually, and to be recognised by tacit acquiescence, various consuetudinary rules of conduct, varying according to times, situation, or circumstances, and occasions or opportunities; but forming a positive law of nations, bearing the same relation, as all other positive law does, to natural law. "Were we to imagine," says M. Schmalz, "a diet, or general congress of neighbouring nations to be assembled, or held for the purpose of digesting a common international code, the laws which custom and usage had introduced, would always be, among these nations, as they are among the citizens of each state, the groundwork or basis of the legislation. The use of Embassies to facilitate the intercourse of nations, as little appears to have had its origin in any such diet or congress, as the invention of Bills of Exchange appears to be attributable to any legislator. The nature of these two institutions, or modes of proceeding, neither the diet nor the legislator could alter. It rests on usage; and wise legislation can only regulate what custom has formed out of reciprocal wants and necessities."

"It must be obvious, however," continues M. Schmalz, "that no common or general positive law of nations can be formed out of the particular treaties or conventions of single nations, however similar they may be.

These treaties can be used for the construction of the science, only in order to see and ascertain what has been propounded or recognised in them all, as

* Das Europäische Völkerrecht. Berlin, 1817. Buch I. S. 10.