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do they exist? Where is the evidence of them? Now, certainly while the records of the second kind or description of international law, namely, the particular conventional law of nations, are contained in the conventions or treaties which modern nations have entered into with each other, and which exist to a large extent in the various ponderous collections of treaties, from those by Leibnitz to those by Martens, the records of the first kind or description of international law, namely, the general common consuetudinary law of nations, are not so easily discovered. General history gives little information on the subject.
The evidence is to be sought in a greater variety of documents; but still it exists, and to a large extent.
The first class of historical records in which this evidence is to be found, is that of the written or printed statutes or ordinances enacted or established from time to time by the supreme power of the state, legislative, executive, or administrative; whether they be called acts or statutes, ordinances, edicts, réglements, orders in council, or by any similar appellation, so far as they relate to or affect the rights or interests of other separate and independent nations or states, their governments or subjects. Next to these primary and direct acts of the state or government, come the determinations in individual cases, of the judicial establishments generally, of the courts of law of a country appointed by and acting under the authority of the state, particularly of the international courts of maritime prize law during war. And the records or reports of the decisions of these different courts afford the next description of evidence of the conduct of nations, “in matters of general intercourse or collision of rights, towards each other."
Further, the writings of the lawyers of a nation, and particularly of international jurists, afford a third, though perhaps inferior kind of evidence of such acts of nations as we are considering-namely, those which are productive of rights in other nations.
Of these three kinds of documentary historical evidence, the two first are plainly of the greatest weight, the judicial determinations, as well as the enactments or ordinances, of the legislative and executive powers, being acts of the supreme power of the state. So far as they record these acts, the writings of jurists are, of course, of equal authority. But otherwise, or beyond that limit, they merely transmit their own intuitive convictions or logical deductions from such premises in point of legal principle, or merely record the prevailing opinions and sentiments in such matters entertained and recognised by their nation, or the intelligent part of it, or by nations generally. And if the views of such writers are to be received in general with suspicion of partiality from the natural influence of patriotic zeal, their testimony may at least be received without distrust, where it is against the interests of their own country, or where it merely records the practice of their own country.
Compared with the more carefully preserved, and, to a certain extent, better arranged and more accessible documentary evidence of conventional international law as contained in the ponderous collections of public treaties, the evidence of common consuetudinary international law as afforded by the different kinds of historical documents just enumerated, has one considerable advantage or superiority. The latter record what the government or nation has actually done ; the former merely afford evidence of
the engagement which the contracting parties have undertaken, not of the actual fulfilment of these engagements, which governments have not unfrequently evaded.
In the last or French edition of his systematic work, entitled Elements of International Law, 1848, the North American jurist, Dr Wheaton, we observe, denominates the historical documents we have just been considering the “sources” of international law, instead of the “records ;" as if we were to call the volumes of the statutes and of the reports of the decisions of the Courts of Common Law and Equity, the “sources” of the law of England. We prefer the term “records," as more applicable and appropriate, reserving the appellation of “sources” for the scientific sources of the law—those physical relations in the material and mental world exhibited on the surface of this earth, as giving rise to, or involving the juridical relations of rights and obligations susceptible of enforcement. But, of course, whether the one appellation be adopted, or the other, is of little consequence, provided the import be precisely explained and distinctly understood.
Objections to Common Consuetudinary Law, and
Having thus resumed the view with which we set out, when investigating the sources of international law generally, and illustrated more fully the foundation and nature of the branch of that law which we are here considering, as now usually called common and consuetudinary, or non-conventional, we proceed, as formerly proposed, to answer the chief objections which have recently been urged to the validity of general common consuetudinary international law, as not resting on a general compact among nations, or universal joint consent—as being obscure, from its very antiquity-as being liable to change, and vague—and as not entitled to the appellation of common law.
That the arguments urged and attempts made, to invalidate the force of common consuetudinary international law, may be correctly and fairly represented, we shall quote some passages from the Régles Internationales et Diplomatiques de la Mer, 1845, by M. Théodore Ortolan, the latest French writer on the subject, as to all appearance containing the opinions of the eminent French lawyers, whom M. Ortolan states he consulted in the composition of his work ; and particularly of M. Dupin, who on two occasions in 1845 highly eulogised it in Reports to the Académie des Sciences Morales et Politiques, forming the second branch of the National Institute of France. * As M. Th. Ortolan is not a practising lawyer or jurist by profession, but a gallant naval officer (Lieutenant de Vaisseau, Chevalier de la Legion d'Honneur,) it is surprising that his treatise should exhibit so much information, not only in his own practical department of the profession, but likewise so extensive an acquaintance with the rules of maritime international law during war, especially as professed by France when he wrote. And certainly a general
* “Revue de Legislation,” 1845, vol. i. p. 129 ; vol. iii. p. 522.
COMMON CONSUETUDINARY LAW.
acquaintance with the leading, just, and impartial principles of that science, as recognised by the European nations, is highly desirable in naval commanders, often intrusted with the performance of important services, where material collisions of interests may frequently occur, and where sound discretion is so necessary. The work of M. Ortolan, too, is, with some exceptions, well arranged, and, for such a subject, written in a simple, neat, and even elegant style; and he marshals the arguments he brings forward in favour of the cause he supports with such art, skill, and adroitness, as to approach to the astuteness which is usually only acquired from experience, and in advanced age.
After apparently concurring in the division, now generally adopted, of positive or established international law into two distinct parts, viz., common consuetudinary and conventional, M. Ortolan thus proceeds to state the objections to the common consuetudinary law of pations, as before expounded by us. “But the principal difficulty consists in determining when and how the rules of common consuetudinary international law here alluded to have been confirmed by all the nations in their mutual relations, in such a manner as that they may be collected and united in a sort of code, unwritten, obligatory on all ; to what extent they may have been recognised and adopted in practice ; and whether that adoption has always been, and still is, sufficiently general, that it may be said that each of them, considered separately, makes part of the whole of the common international law, positive and consuetudinary.”*
* “ Régles Internationales de la Mer," vol. ii. p. 438.