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national law along and co-ordinate with common consuetudinary law and conventional law. Indeed, he seems to have fallen into the error of preceding writers, pointed out by Mr Bentham ; for there does appear to be an awkwardness or inaccuracy, if not inconsistency, in the arrangement which M. Th. Ortolan merely adopts after several anterior writers, inasmuch as it places “reason " as the first source or branch of international law, and at the same time holds that “reason” is only to be consulted in the last place, after conventional and after common consuetudinary law. There can be no doubt that in practice the conventional law of nations ought to be first consulted, because a treaty is a special contract by the state or government, very frequently conferring a right or imposing an obligation which did not previously exist, and usually a deviation, by the express consent of contracting parties, from the pre-established practice. And the error seems to consist in introducing “reason" as the first constitutive authority in positive or established international law. The truth, indeed, seems to be, that reason may be exercised as a faculty, or appealed to as an authority, both in interpreting the import of treaties
—that is, the conventional law—and in discerning and ascertaining the common consuetudinary law of nations, as founded on their juridical relations, and on their longestablished and uniform practice, but cannot be correctly introduced either as a branch or as a source of international law, any more than of any other science. In modern languages, reason appears to have chiefly two meanings either what is reasonable, what reason enjoins or dictates, (ratio juris, rationis dictamina,) or the faculty by which the mind intuitively perceives or appre
hends first truths; or l’Art de Raisonner, so beautifully illustrated by the Abbé de Condillac, in his Cours d'Etude, in its application to physical astronomy-viz. the faculty of logically deducing the consequences which flow from first truths, intuitively perceived or apprehended, or otherwise pre-established. But if the term reason be used to denote a faculty of the mind, it obviously, in that sense, cannot be employed, either logically or grammatically, to convey the idea of a branch or department of law for the compulsory regulation of human conduct. And if it be used to denote what is reasonable—what reason dictates among nations
-reason is, no doubt, in that sense, sufficiently comprehensive to embrace law ; but it is manifestly too comprehensive and indefinite to include merely and solely, and to define or describe distinctly, law susceptible of coercion, much less to form a subordinate member in an arrangement of the branches or constitutive parts of a particular department of such law.
Having now traced the sources and distinguished the two great branches or component parts of international law, we shall proceed to mark the nature, limits, and effects of these two branches-common consuetudinary and conventional.