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reverse may generally be proved by authentic evidence of the subsequent conduct of these contracting parties to these other nations.
As they could not legally, so the treaties of the seventeenth and eighteenth centuries before referred to did not de facto supersede the pre-existing international law, or nullify it, or render it inoperative with regard to other nations not included in the treaties. These treaties merely constituted exceptions from the pre-existing general rule ; and this appears both from the terms of the treaties themselves, when deliberately considered, and is also proved by the documentary evidence in existence, of the internal legislation and administration, and practice of the contracting parties, with regard to nations not included in the treaties, and by the testimonies of their own distinguished lawyers stating the practice of their respective countries, such as the Chevalier d’Abreu with respect to Spain, and Valin and Bouchaud with respect to France.
In the third place, M. Ortolan, with regard to the original or ancient rule of consuetudinary law, which he has selected for discussion, maintains that by the almost unanimous consent of the European nations, as expressed in the proposals, proclamations, treaties, and accessions to treaties, to which the appellation has been given of the Armed Neutrality, the original rule was abandoned, and the opposite one adopted ; and that this general accord of the great majority of the European nations ought to be held binding upon the small minority who declined the proposal, and chose to abide by the long established rule. That this mixed argument of fact and law is supported by exaggerated narration, and is destitute of foundation in law, has been and may probably
again be shown. But as it relates to a rule in a particular department of international law, namely, maritime international law during war, it may be better, as formerly, to reserve any farther remarks on this point for a future occasion.
In addition to, and immediately after the passage before quoted in part and referred to, M. Ortolan thus concludes his attack on common consuetudinary international law, (vol. ii. p. 439)—“ With respect to rules (régles internationales) thus changed or modified, in spite of the antiquity of the origin of these rules, perhaps in consequence of that antiquity, and notwithstanding the long space of time during which they have been followed, consuetudinary international law cannot be called common
—for the word “common' signifies followed by all—it becomes doubtful, vague, and insufficient. The means of obviating this vagueness and this insufficiency is to have recourse to the law which nations have made for themselves, by the express and often renewed stipulations of their written conventions—that is to say, to the positive conventional law resulting from public treaties."
In this paragraph two positions appear to be maintained : that the rules of international law, being liable to change or modifications, cannot be called “common," because they are not followed by all nations; and notwithstanding, or in consequence of their antiquity, become in the course of time doubtful, vague, and insufficient-for obviating which the only resource is the positive conventional law which, by treaties, nations have made for themselves. Whether, and how far, treaties denominated positive conventional law afford a solid basis for all other international law, we have already so far seen, and will afterwards inquire more particularly. At present we shall confine ourselves to the observation that consuetudinary international law, being liable to change or modification, cannot be called common, because it is not followed by all; and, no doubt, if by all be meant all the nations, tribes, and communities dispersed over the surface of this globe, in Asia and Africa as well as in Europe and America, the consuetudinary law of nations cannot be said to be followed by all. But if, as usual, we limit the term “all” to civilised nations, those of Christendom, the European nations, and those who have emanated from them and now occupy America, we may, with sufficient propriety, say that consuetudinary international law-by which we mean not only the natural, but the positive, as the Germans call it, or the established, recognised, and practised law of nations-in being common to them all, resembles the internal common law of a people, at least more so than any other international law arising from treaties or conventions. And here we allude not merely to those more humane rules of the law of nations which have been introduced in modern Europe through the mild influence of Christianity, as so well explained by the late Mr Robert Plumer Ward, in his History of the Law of Nations anterior to Grotius, by Principal Robertson and other historians such as the sparing of life on the surrender of arms, the non-reduction of prisoners of war into slavery, the abolition of the use of poisoned weapons, the good treatment and frequent exchange of prisoners of war, &c. ;—we allude also to some later improvements, such as the abolition of paper blockades, at one time resorted to by Holland and England against the aggres
sive policy of Louis XIV., but abandoned upon neutral remonstrances ; or as the unjust, but long-persevered-in practice of the French and Spanish governments, in confiscating neutral vessels because they carried hostile goods, and neutral goods because they were carried in hostile vessels. No dubiety, vagueness, or insufficiency arose from these changes and modifications, notwithstanding or in consequence of the antiquity of the customary rule which came to be observed.
With regard, again, to the propriety and correctness of the application to consuetudinary international law of the term “common,” here disputed by M. Ortolan, we apprehend he mistakes the meaning of the term both in the ancient and modern languages of Europe, limiting it to what is effected through a simultaneous or contemporaneous joint agreement, or union of consent; whereas the term implies also, if not its essential, its chief and ordinary signification as predicated of law-rules or courses of conduct, identical or similar, separately followed or adopted by different individuals in civil society, or by nations, whether contemporaneously or in succession by different generations. The jus gentium of the Romans, as contrasted with their peculiar jus civile, was the common law of mankind advanced to a certain degree in civilisation, although not emanating from any joint or simultaneous agreement. The rights and obligations which we formerly enumerated chiefly constitute the jus gentium inter civitates, primarium et secundarium ; and that law is called common, from being common to, and as having been usually followed by, if not all nations barbarous and civilised, at least by all the civilised European nations and those emanating from them, and from
TERMINATION OF HOSTILE RELATIONS.
head, may be arranged as follows :- Approach to r conciliation; preparatory negotiations with a view peace, by means of a congress, or otherwise ; mode negotiating at a congress, or between court and cou preliminary and definitive treaty of peace; signature treaty; separate articles ; general, common, and jo or principal and accessory treaties of peace ; form accession ; guarantee of treaties ; validity, interp tion and execution of treaties of peace ; contempl perpetual peace, and tribunal of nations.
Such seem to be, if not the whole componer
Under the former of these denominatic