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

218

TERMINATION OF HOSTILE RELATIONS.

head, may be arranged as follows:- Approach to re-
conciliation; preparatory negotiations with a view to
peace, by means of a congress, or otherwise; mode of
negotiating at a congress, or between court and court;
preliminary and definitive treaty of peace; signature of
treaty; separate articles; general, common, and joint,
or principal and accessory treaties of peace; form of
accession; guarantee of treaties; validity, interpreta-
tion and execution of treaties of peace; contemplated

perpetual peace, and tribunal of nations.

each other

cedent

CONCLUSION.

Such seem to be, if not the whole component parts,
And we may conclude
as ascertained by an exhaustive logical analysis, at
least, the principal component parts of international
as ascertained from observation and experience,
law,
and arranged in an order, which observation and ex-
perience suggest as natural.
with repeating, that these component parts, taken as
a whole, constitute, in combination, the natural and
positive law of nations.

Under the former of these denominations, are com-
prehended, those juridical relations, and consequent
rules of conduct, between, or among, the assemblages
of men, occupying particular portions of this globe as
territory, united in domestic and civil society, under
one government, and forming states, independent of

each other; which relations and rules, if not antecedent to all human legislation, arise from the physical and mental constitution of mankind, and the circumstances in which they are placed, and exist independently of the acts of men; and which, if not intuitively perceived, or immediately felt, are actually perceived and felt, in the course of experience, and admit of being enforced, consistently with justice, individual reciprocity, and general, if not universal, expediency.

Under the latter denomination of positive are comprehended the rules of international conduct which have been actually recognised by nations, and adopted in practice. And this recognition and adoption may be either virtually rebus et factis, by established custom and usage, or totidem verbis, by express paction or treaty.

Under either of these modes of recognition and adoption there may be comprehended-first, and chiefly, the rules of natural international law, before described; secondly, modifications of, and sometimes departures from, these rules; thirdly, rules of national conduct, which may not properly fall under the rules of natural international law, but which, in the course of experience, though otherwise indifferent, it has been found beneficial or convenient to fix in one way, and to recognise and adopt.

As the stipulations in treaties usually relate to a certain number of points, and are generally similar, the conventional law of nations as a whole admits of systematic arrangement, and is clearly binding on the contracting parties. But beyond the contracting parties

Р

the same or a similar description of uni-lateral acts, though performed separately and independently, having been uniformly performed by these different nations in

common.

Farther, for the propriety of the application of the appellation "common" to general consuetudinary and non-conventional law, we may even appeal to the authority of one of the ablest French jurists of the present century,-in speaking of whose work, M. Dupin says, "It is a great advantage to have the power of benefiting by the meditations of a man whom long practice has enlightened; we have this advantage in the possession of the book of M. Gerard de Rayneval; he has always been attached to foreign affairs and to French diplomacy." Thus says M. de Rayneval :-"I cannot cease to repeat, treaties (their contents are of no importance) do not constitute the law of nations; they are the expression of the particular will of the contracting parties, and the law of nations is independent of that will; they are of the same nature as contracts between individuals; but, in the absence of any contract, it is the 'common law' which decides; and between, or among nations, the common law is the law of nations-(le droit de gens.)"