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taneously or successively by the people in their legislative capacity—that is, by their representatives, as constituting a legislative body according to the form of their government.
All acts of any description are not qualified, or of such a nature, as to become the indications of common consuetudinary law, however often they may be repeated, or however long continued. The act must be that of a rational being of ordinary intelligence, not absurd, or indicative of an insane or fatuous mind. It must not be a purely benevolent and beneficent act, or one of charity, or performed as becoming merely in a moral point of view, however laudable otherwise; for acts of purely benevolent generosity or charity, however often repeated, can never impose upon the agent a legal obligation, through which he may be compelled to perform such optional and discretionary acts. As little can the act be of a hurtful, aggressive, or criminal nature; for frequent repetition can never justify or palliate a crime, or create any legal obligation, except, as we have seen, the legal obligations of restitution and reparation. In truth, to found a rule of common consuetudinary law, it must have as its basis the consciousness and conviction of the people of the legality of the rule. But how is this to be ascertained ? The following seems to be the answer and solution of the problem.*
The act must not be separate or individual ; it must, like the common sense of mankind, be general and common to all the members of the civil society or community, or of the assemblage of nations or states, whom
* See Von Savigny, “System,” Vol. I. § 28 : 1846. Prof. Puchta, “ Das Gewohnheitsrecht,” Book III. chap. ii. : 1837.
we contemplate as actually existing. Again, the act must not be single : there must be a plurality of actions repeated in succession ; and the more open, public, and notorious, the better. Again, the course of acts, if they be not precisely identical or similar, must be uniform, without interruptions by intermediate acts of an opposite or different nature. Again, the acts must have been repeated for a considerable time, generally exceeding the ordinary or average duration of human life; varying with circumstances, but such as to guard against accidental, transient, and variable acts being erroneously assumed as indications of a common conviction of law. Further, judicial decisions have been generally admitted as sufficient indications of the existence of the rules of common consuetudinary law; and they partake also of the authority of the statutes or legislative enactments of the government, as the representative of the people, in so far as the judicial power in the state supplies the defect of the legislative power, inasmuch as the latter is not able to foresee and provide for all the cases that emerge in the progress of civilisation.
When the qualities or requisites here enumerated concur in the usage or custom, the fair inference and legitimate logical deduction from it is, that it implies, and is the result of, a rule of common law, which corresponds to it, and lies at the bottom of it as its basis. The authority and legal validity are not derived from, and do not belong to, the custom or usage, of and for itself, but are derived from and belong to the rule of law which is contained or implied in it, the ratio juris, the opinio necessitatis, which are discerned from the custom or usage, just as the statute law or legislative enactment is
discerned and learned from the written or printed statute book.
Such being the true foundation of common consuetudinary law, in the private law or internal jurisprudence of states, so far as derived from or proceeding upon the uni-lateral acts, usages, and customs of the individuals of whom the nation is composed, we find, from observation and experience, that the same mode of reasoning is applicable, that the same juridical conclusions may be logically deduced from the uni-lateral acts, usages, and customs of nations, contemplated as wholes, as assemblages of individuals, in their intercourse with each other. Combining the strictly legal principles before noticed, and the influence of habit, and the considerations of prudence, danger of deviation, and urgent expediency, as before quoted from Von Martens, with the brief exposition just given of the true foundation of common consuetudinary law in general, so far as resulting from the uni-lateral acts of mankind, either as individuals or independent states, we may form a tolerably accurate notion of the grounds on which the authority, legal validity, and obligatory force of common consuetudinary international law rests. And applying these principles, the following seems to be the result.
If the government of a state prescribes to its subjects regulations for their conduct towards the subjects of other states; or if, without any such directory regulations, a nation acts or proceeds in a certain manner towards other nations, and particularly if this mode of conduct is openly and uniformly continued and persevered in for ages, so as thereby to indicate and prove a consciousness or settled conviction and inward feeling of right in the individuals
COMMON CONSUETUDINARY LAW.
composing the nation and its government, that the mode of proceeding which has been followed is just and equal; other nations then become entitled, provided they have followed the same or a similar mode of action, not merely upon the legal principle of reciprocity as before noticed, to treat that nation in the same or a similar manner as it has treated them, but also, and further, to assume the said mode of action which has been openly and uniformly followed for ages by all the parties in common, without any previous joint arrangement to that effect, as a rule of common consuetudinary appropriately practical, international law, of which the legality has been recognised in their own conduct by all the parties interested in or affected by it, and which is to be relied on, at least till a new rule be adopted by the universal consent of all the parties interested, or till altered by a special bargain between the contracting parties, or a treaty. In this way, indeed, there is no meeting or assemblage at one time, no congress of nations or their representatives, agreeing simultaneously upon certain rules to be observed in future by all and each of them. But although they may not all assemble, even by their representatives in congress, and unite in one common contract or treaty, nations we have seen do de facto, from the similar corporeal and mental constitutions, views, and feelings of the individual men of whom they are composed, and from the similar circumstances in which they are placed, both in a rude state and in the progress of civilisation, act very much in the same or å similar manner; and thus in time come to adopt the same or similar, and so far, consequently, common rules of action towards each other, without any previous concert, or fixing these rules by any
written contract entered into in common, just as in the interior of each independent state, the common consuetudinary or practical law grows up, without and to a much greater extent than legislative enactment or statute law. Further, as we have seen, the juridical or legal relations of independent states, and concomitant or consequent rights and obligations, besides those which arise from their natural constitution or organisation as such, and their respective positions as occupying separate territories, are extended and enlarged by their own separate and uni-lateral acts towards each other, without any mutual concert or joint arrangement. Nor is this principle of legal or compulsory justice confined to any particular department: it holds in war as well as in peace; it embraces all the points in which nations come in contact or collision with each other in their reciprocal intercourse, beyond what arises from their very constitution as independent states, and their relative position on the surface of this globe ; and it rests on the same foundation as the rights of national independence and exclusive sovereignty and dominion.
The separate uni-lateral acts, or series of acts of nations, which thus recognise and give rise to reciprocal rights and obligations in nations towards each other, must, of course, be the acts or conduct of the supreme power of the state or government. But where, it may be asked,