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Nations from Natural Law He says,— As the laws of each particular State are designed to promote its advantage, the consent of all, or at least the greater number of States, may have produced certain laws between them ; and, in fact, it appears that such laws have been established, tending to promote the utility, not of any particular State, but of the great body of these communities. This is what is termed the Law of Nations, whence it is distinguished from Natural Law.1 With Grotius's definition of Natural Law before me (see page 14), I confess inability and unwillingness to recognise such a distinction. Unwillingness, because the necessary effect of such a distinction is to
foundation of the science-to assert that, while God the author of nature has enjoined some actions, and forbidden others to men as members of a given State, yet that He has omitted to do so to men as members of the great human family. Mutual interest or utility cannot be any less the source of International than it is of Municipal Law. with those two branches of law. That fact, therefore, cannot be received as an argument. It is said that the jus gentium of the Romans was not a body of rules regulating the mutual intercourse of nations, but that it was that portion of natural law to which all mankind does homage, and which has accordingly been incorporated into the domestic code of every nation. Referring to what has already been said about the Prætor Peregrinus, (pp. 96, 97,) we appear to be warranted in saying that the law administered by him should in strictness be styled the Private International Law of the Romans, which—as. the number of residents in Rome to whom the Quiritarian Law was applicable became numerically less significant when contrasted with those to whom it was not applicable--ultimately supplanted the Quiritarian Law; the principles of the Private International Law being proved to be better adapted than those of the Quiritarian Law to the wants of the people generally. Without enlarging further upon this point, it appears only necessary to mention the fact, that every international jurist of eminence constantly refers to the Romans for authority. It would indeed be difficult to point to any fundamental principle that cannot be found in the works of Justinian.
i Grotius de Jur. Bel. ac Pac., Prolegom. 40, 17.
The Sources of International Law are:-
(a.) Treaties of peace, alliance, and commerce, declaring, modifying, or defining the pre-existing International Law.
(b.) Ordinances of particular States, prescribing rules for the conduct of their commissioned cruisers and prize tribunals.
Necessity.-Of the Sources of International Law, I place necessity first, as being the natural basis-resulting from the innate springs of human action, on which it appears to me that all others must rest. It is not possible to imagine two contiguous nations, separated from each other merely by a river, a mountain range, or a forest belt, existing for ages, for years, or even for months, without intercourse of some character. When, forexample, the border-lords of England and Scotland, of England and Wales, carried on perpetual war, they were not prompted to fight by a passion for blood. Rivalry and aggrandisement, dearerto them than life, particularly that of their retainers, was the real incentive; for lightly as they esteemed human life, including their own, they held it sacred in the person of the captive lord, whose ransom was of greater value; in the person of the captive retainer, whose exchange furnished them with the tools for future raids. Can it be said even of these, that they had no International Law ? If they had, of what did it consist other than those rude principles equally well known to the North American Indian-in short, to man, wherever man is found? The respective characters of the neighbours, and the various motives for their intercourse, must necessarily determine the conditions of its existence; which conditions will be regulated by the circumstances of time, place, individual desire, and mutual necessity.
i See post, Public International Law, p. 223.
Custom. Naturally flowing from necessity, is custom, habit. Custom (Lat. consuetudo, Fr. coutume, It. costume, Sp. costombre) is defined to be 'An unwritten law, established by long usage and the consent of our ancestors. If it is universal, it is common law; if particular, it is then properly custom. The requisites to make a particular custom good, are these :-1, It must have been used so long, that the memory of man runs not to the contrary; 2, it must have been continued, and 3, peaceable ; 4, reasonable ; 5, certain ; 6, compulsory, and not left to the option of every person, whether he will use it or not; 7, consistent with other customs, for one custom cannot be set up in opposition to another.'1
This definition, though given to define the word custom, one branch of English Municipal Law, may be taken as accurate when applied to the Jus Consuetudinarium of nations, or the particular source of Inter national Law under consideration, with such modifications only as the nature of the subject at once indicates.
Sir Travers Twiss says,- The Jus Consuetudinarium of nations is to be gathered from a variety of sources. Ancient collections of Maritime Usages, such as are to be found in the Consolato del Mare (13th century) and the Roles d'Oleron (Richard I.), supply evidence of a very early practice. Thus the rule that enemy's goods found on board of neutral vessels may be captured and condemned as prize of war, is supported by a long established practice, of which evidence has been recorded in the Consolato del Mare, c. 273. On the other hand, a consuetudo may be inferred from a succession of Public Treaties, in which exceptions to it have been made for temporary purposes, or in which regulations have been agreed upon as to the manner of enforcing it. Thus there are numerous instances of treaties since the middle of the seventeenth century, whereby nations bound themselves to make exception towards one another in regard to the practice of confiscating the goods of an enemy found on board of the vessel of a friend. Such exceptions, however, were matters of treaty-engagements; and when the treaty expired, the exceptional engagement ceased, and the general rule came into operation again. So likewise the consuetudo, under which the Sound Dues were levied by Denmark upon all vessels passing into or out of the Baltic by the narrow seas of the Sound or the Belts, was a matter of inference, as against the nations of Europe, from a series of treaties commencing in the fourteenth century, in which the European Powers have tacitly admitted the right of Denmark to levy tolls by negociating for and agreeing to a tariff of the tolls. Again, a consuetudo may be directly recognized by the European Powers in a formal Convention ; such, for instance, as the Convention of London, July 13, 1841, whereby the Five Principal Powers of Europe recognised the ancient rule of the Ottoman Porte to keep the passage of the Straits of the Dardanelles closed against foreign vessels of war whilst the Ottoman Porte is at peace, and declared their unanimous determination to conform them.
1 Wharton's Law Lexicon. ? See Hale, pp. 175, 176, notes.
selves to it. Again, a consuetudo may be inferred from the Ordinances of Princes on matters touching their relations with other Powers, where an uniformity of principle is observed to pervade them, and their enactments in pari materia are identical.'
Convention.—The agreements entered into between two or more Sovereign Powers are termed Treaties.
• Treaties,' says Mr. Madison, 'may be considered under several relations to the Law of Nations, according to the several questions to be decided by them.'
• They may be considered as simply repeating or affirming the general law; they may be considered as making exceptions to the general law, which are to be a particular law between the parties themselves; they may be considered as explanatory of the law of nations on points where its meaning is otherwise obscure or unsettled, in which they are, first, a law between the parties themselves ; and next, a sanction to the general law, according to the reasonableness of the explanation, and the number and character of the parties to it; lastly, treaties may be considered as a voluntary or positive law of nations."
Ordinances.-The Ordinances of particular States prescribe rules for the conduct of their own subjects; e.g., their commissioned cruisers and prize-tribunals.
The marine ordinances of a State may be regarded, not only as historical evidences of its practice with regard to the rights of maritime war, but also as showing the views of its jurists with respect to the rules generally recognised as conformable to the universal Law of Nations. The Usage of Nations, which consti
1 Law of Nations—Peace, p. 124. 2 Examination of the British Doctrine &c., p. 39.