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CHAPTER IV.

FIRST COMPONENT PART OR BRANCH OF PUBLIC INTER

NATIONAL LAW, USUALLY CALLED COMMON AND CON-
SUETUDINARY.

SECTION I.

The Foundation.

In further considering the basis of the common consuetudinary law of nations, its distinctive character, and the evidence by which it is supported, we shall begin with briefly recapitulating what we formerly observed on this subject, in tracing the scientific sources of international law generally, so far as regards this branch ; and we shall then answer, and we trust refute, the objections which have been stated of late years by some Continental lawyers, to the validity and binding nature of common consuetudinary international law, including a reference to its records.

As in the internal private law of nations, the legal obligations of individuals to each other are not limited to those arising from agreements, or contracts, although numerous and of great importance, so in international law, all the legal obligations of nations, in relation to each other, do not arise from treaties. On the contrary,

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as in the internal private law of a people, prior to and after legislative enactments, there are perceived or apprehended, and felt, certain juridical or legal relations among individual men, from their constitution or organisation and position on the surface of this globe ; from their birth and death, the mode in which the species is propagated and perpetuated, and the consequent connection of family and kindred; from their congregating and living together in civil society, and from their individual intercourse, as members of that community, for the various purposes of life : so in international law, both before, and after, and independent of the existence of treaties involving the mutual consent of separate and independent states, there exist certain juridical or legal relations among these nations, viewed, as of themselves each constituting a whole, as assemblages of men united under one government, and forming independent states, arising from their co-existence, their constitution, and organisation as such ; from their relative position and circumstances, as consisting of different races, as occupying different territoríes, divided by seas or ranges of mountains ; and particularly from their intercourse by land or sea, in commerce or otherwise, for the purposes of obtaining the necessaries and enjoying the comforts and superfluities or luxuries of life.

Those primary and essential juridical relations, rights, and obligations which thus arise, under the physical laws established by the Omnipotent and All-wise Creator, from the common constitution, corporeal and mental, of mankind congregated into communities and states, and from the circumstances in which they are located, are obviously not the creatures of contract or convention.

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Most of them are intuitively perceived, instinctively felt, and acted upon, by all individuals of ordinary intelligence; they exist, as M. de Savigny observes, in the common consciousness and conviction of the people; and they are called consuetudinary, as well as common, because they exhibit themselves in the permanent usages and uniform habits and practices of nations, indicating, by their continued repetition and uniformity, the consciousness and conviction of their legality. They are what the Prussian Professor, Heffter, terms “the fundamental relations of states as such—the essential rights and obligations of nations.”* They are manifestly anterior to human laws and conventions, and are the bases of all the rights and obligations arising from the acts, whether uni-lateral or bi-lateral, of mankind, united in civil societies. Though frequently violated by ambitious governments and aggressive nations, these are recognised in their very violation by the attempts usually made in declarations of war, and other such proclamations and manifestoes, to justify the unlawful proceedings.

But besides those primary juridical relations, those common fundamental and essential rights of nations, which arise from the physical laws established by the Omnipotent and All-wise Creator in the corporeal and mental constitution of mankind, and in their location on this earth, as different races, and separate tribes and communities or states, not from futile human conventions, or pretended astute diplomacy, there are also comprehended under common consuetudinary international law other juridical relations, rights, and obligations, which do

* “ Das Europäische Völkerrecht der Gegenwart,” 1844.

not arise until they are called forth into existence, and come into operation through the delegated power of action bestowed by their Creator on mankind-on states as well as on individuals.

For, as in the internal private civil law of states, juridical or legal relations among individuals arise, not merely from agreements or contracts between or among them, but also from the uni-lateral acts of individuals— either illegal, as producing the obligations of restitution or reparation, or legal, creating a right in others such as that to recompense or reimbursement—so, in international law, a nation or state may not only by its illegal act, or series of illegal acts, such as unprovoked invasion and plunder, subject itself to the legal obligation of restoring matters to the status quo, and of repairing damage and defraying the expenses of the war occasioned by the invasion to the party aggrieved, but may also, by its act or series of acts—that is, conduct towards other nations in matters which are comparatively indifferent, or which do not involve any violation or infringement of the rights of others—create a right in other nations to act in the same manner towards that nation, and to treat it in the same manner as it treated them, upon the juridical or legal principle of retributive justice or reciprocity.

But here it is necessary to investigate more narrowly the nature, operation, and effects of the uni-lateral acts of nations, as establishing international law. So far it is obvious that these separate and uni-lateral acts performed by a nation, however valid and effectual, and binding upon all the members, citizens, or subjects of the state, cannot, like the bi-lateral contracts between nations, or treaties before alluded to, bind, or impose any legal obli

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