« PreviousContinue »
FARTHER ILLUSTRATION OF PUBLIC INTERNATIONAL LAW,
ITS BASIS AND CONSTITUENT PARTS.
In our last chapter, we endeavoured to point out the boundaries of the subject of our inquiries as being properly and strictly international law, not the ethics or morality of nations, but compulsory or coercive law, unfolding rights and obligations susceptible of physical enforcement; and we also endeavoured to trace the different sources of that law-meaning by that term the scientific sources of the rights and obligations of which international law is composed as existing in nature, or arising in the natural or ordinary course of events taking place on this earth ; not the mere record of those international rights and obligations. In investigating these sources, we found ourselves constrained and authorised to recognise and admit three of them :—First, the coexistence and co-existent position and mode of communication among nations as established by physical material causes or laws in the construction of the surface of this globe, and the physical mental causes or laws established in the constitution and organisation of mankind as united in civil society, forming communities or states, and exercising an influence upon each other according to their respective degrees of advancement in civilisation. Secondly, the acts of nations in relation to other nations, and affecting other nations, but separate and uni-lateral, without any joint agreement, compact, or convention ; without any union of two or more wills. Thirdly, the joint acts of nations, agreements, compacts, or conventions; the union of two or more wills, fixing the rights and obligations of nations towards each other for the present, and in future, so long as such agreements and conventions endure, and so far as they extend.
But although, from observation and experience, we were led and authorised to recognise three sources of international law, it does not follow that we are required to admit or recognise three different kinds of that law, or to make of it a threefold or tri-partite division. For, upon more minute examination, it will be found that each of these sources does not produce a separate set of rules or collection of rights and obligations of such an identical or similar nature, possessing such a collection of similar qualities in common, as to constitute each a separate and distinct body of law. On examination, it will be found that the first and second sources concur in producing only one set of rules, or collection of rights and obligations, as that just alluded to, and the third source another. The class or kind of law, or compulsory legal rights and obligations, arising from the first and second sources, are distinguished by the qualities of being general and common, most of them essential and permanent; arising, not from any union of the wills of mankind, joint consent, or agreement, but from certain physical relations, material and mental, among nations, existing, or arising, or coming to take place, as events, facts, or uni-lateral acts; proved chiefly by long established customs and usages, consisting
not merely of senseless repetitions of the same useless or indifferent acts, but of repetitions for such a length of time, and so uniform as to indicate, as their cause, a conviction in the people that such are the rules of right and obligation, and therefore of compulsory or coercive law. The other class or description of legal rights and obligations among nations, arising from the third source, is distinguished by the qualities of being particular or special, arising from the union of the wills or joint consent of two or more nations, from agreement, compact, convention, or treaty. There thus, we find, exist, not three, but only two descriptions, constituent parts, or branches of international law, of which the boundaries, like the colours in the rainbow, may run into each other, but are sufficiently distinguishable : namely, general common law, mostly essential, or permanent, arising from the physical, material, and mental relations of nations as located on the surface of this earth, and affecting each other by their uni-lateral acts without any previous agreement; and particular international law, arising from the union of the wills of nations, as expressed in compacts, conventions, or treaties, and generally or usually called conventional, or jus pactitium. And these two component parts or branches of international law we shall now consider separately.