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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 bas 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
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.)”
SECOND COMPONENT PART OR BRANCH OF INTERNATIONAL LAW, USUALLY CALLED THE CONVENTIONAL LAW
SECOND COMPONENT PART OR BRANCH OF INTERNATIONAL
LAW, USUALLY CALLED THE CONVENTIONAL LAW OF NATIONS.
HAVING endeavoured to illustrate the basis, nature, distinctive character, and development of the first great component part or branch of the law of nations namely, general, common, consuetudinary, international law, and noticed its evidence or records, we now proceed to the other great constituent part or branch of the law of nations — namely, particular conventional international law, established by public treaties between two or more states. And it seems to have been contended, that the doctrine we propounded in our first article, in tracing the third source of international law, is exceptionable, inasmuch as, if it does not deny the existence, it does not correctly estimate the value, narrows the limits, and does not recognise all the effects of conventional law. A simple perusal of what is stated, in tracing the third source of international law, is sufficient to show that, instead of denying the existence, we recognise the validity and great utility, occasionally, of the conventional law of nations. But the other objections it may be proper to examine and discuss more minutely and profoundly. And in doing so, it may be proper to consider the juridical nature of contracts between individuals, as