the law which regulates the conduct of individuals must necessarily be modified in its application to the collective societies of men called nations or states. A State is a very different subject from a human individual, from whence it results that the obligations and rights, in the two cases, are very different. The same general rule, applied to two subjects, cannot produce the same decisions, when the subjects themselves differ. There are, consequently, many cases in which the natural law does not furnish the same rule of decision between State and State as would be applicable between individual and individual. It is the art of accommodating this application to the different nature of the subjects in a just manner, according to right reason, which constitutes the law of nations a particular science. This application of the natural law, to regulate the conduct of nations in their intercourse with each other, constitutes what both Wolf and Vattel term the necessary law of nations. It is necessary, because nations are absolutely bound to observe it. The precepts of the natural law are equally binding upon States as upon individuals, since States are composed of men, and since the natural law binds all men, in whatever relation they may stand to each other. This is the law which Grotius and his followers call the internal law of nations, as it is obligatory upon nations in point of conscience. Others term it the natural law of nations. This law is immutable, as it consists in the application to States of the natural law, which is itself immutable because founded on the nature of things, and especially on the nature of man. This law being immutable, and the law which it imposes necessary and indispensable, nations can neither make any changes in it by their conventions, dispense with it in their own conduct, nor reciprocally release each other from the observance of it. (b) Vattel has himself anticipated one objection to his doctrine that States cannot change the necessary law of nations by their conventions with each other. This objection is, that it would be inconsistent with the liberty and independence of a nation to allow to others the right of determining whether its conduct was or was not conformable to the necessary law of nations. He obviates the objection by a distinction which pronounces treaties made in contravention of the necessary law of nations to be invalid, according to the internal law, or that of conscience, (b) Droit des Gens, Préliminaires, §§ vi. vii. viii. ix. at the same time that they may be valid by the external law; States being often obliged to acquiesce in such deviations from the former law in cases where they do not affect their perfect rights. (c) From this distinction of Vattel, flows what Wolf had denominated the voluntary law of nations, (jus gentium voluntarium,) to which term his disciple assents, although he differs from Wolf as to the manner of establishing its obligation. He however agrees with Wolf in considering the voluntary law of nations as a positive law, derived from the presumed or tacit consent of nations to consider each other as perfectly free, independent, and equal, each being the judge of its own actions, and responsible to no superior but the Supreme Ruler of the universe. Besides this voluntary law of nations, these writers enumerate two other species of international law. These are: 1. The conventional law of nations, resulting from compacts between particular States. As a treaty binds only the contracting parties, it is evident that the conventional law of nations is not a universal, but a particular law. 2. The customary law of nations, resulting from usage between particular nations. This law is not universal, but binding upon those States only which have given their tacit consent to it. Vattel concludes that these three species of international law, the voluntary, the conventional, and the customary, compose together the positive law of nations. They proceed from the will of nations; or (in the words of Wolf) " the voluntary, from their presumed consent; the conventional, from their express consent; and the customary, from their tacit consent." (d) 66 It is almost superfluous to point out the confusion in this enumeration of the different species of international law, which might easily have been avoided by reserving the expression, voluntary law of nations," to designate the genus, including all the rules introduced by positive consent, for the regulation of international conduct, and divided into the two species of conventional law and customary law, the former being introduced by treaty, and the latter by usage; the former by express consent, and the latter by tacit consent between nations. (e) (e) Droit des Gens, Préliminaires, § ix. (d) Droit des Gens, Préliminaires, § xxvii.; Wolf, Proleg. xxv. () Vattel, Droit des Gens, edit. de Pinheiro Ferreira, tom. iii. p. 22. ce of the most recent and Germany, "the law of us and most extensive acjurisprudence, is a law e and tacit consent of my to regulate the mutual pals, so far as concerns their ywhere the same character --and peculiar form of which are as of any particular State." consists of two distinct and those private relations which A to individuals not subject to sing between those States themselves. satter branch has exclusively a of nations, Völkerrecht, Droit nore properly be called external the internal public law of a at of the ancient jus gentium has nicipal law of each particular e losing its original and essential science concerns, exclusively, certain those private relations which are con ction of nations. It has been usually mnation of private international law." the term international law (droit inter and generally adopted by the most g hìm this term does not sufficiently gentium of the Roman jurisconsults. arations as a law common to all mankind, on else to acknowledge, and the protection by all men and by all States. He places saw on the incontestable principle that sssxicty, there must be a law obligatory on all Deuce deduces the consequence that there he great society of nations an analogous law." a stad Better, M. Bergson, has entitled his work "Le Droit Ze stepe; and Heffter has said that he did not intend the "Law in general (Recht im Allgemeinen) is the external freedom of the moral person. This law may be sanctioned and guaranteed by a superior authority, or it may derive its force from self-protection. The jus gentium is of the latter description. A nation associating itself with the general society of nations, thereby recognizes a law common to all nations by which its international relations are to be regulated. It cannot violate this law, without exposing itself to the danger of incurring the enmity of other nations, and without exposing to hazard its own existence. The motive which induces each particular nation to observe this law depends upon its persuasion that other nations will observe towards it the same law. The jus gentium is founded upon reciprocity of will. It has neither lawgiver nor supreme judge, since independent States acknowledge no superior human authority. Its organ and regulator is public opinion: its supreme tribunal is history, which forms at once the rampart of justice and the Nemesis by whom injustice is avenged. Its sanction, or the obligation of all men to respect it, results from the moral order of the universe, which will not suffer nations and individuals to be isolated from each other, but constantly tends to unite the whole family of mankind in one great harmonious society." (a) law of na § 11. Is there a uniform law of nations? There cer- There is tainly is not the same one for all the nations and states of no universal the world. The public law, with slight exceptions, has tions. always been, and still is, limited to the civilized and Christian e nstruction put upon his language by the author. He considers International Law as a proper term to express that portion of the ancient idea of jus gentium which related to the intercourse and obligations of independent States with each other.]-D. in Heffter, Das europäische Völkerrecht, § 2. The learned Jesuit Saurez has anticipated this view of the moral obligation of the pa gentium.“Ratio hujus juris est, quia humanum genus, quamvis in varios populos et regra divisum, semper habeat aliquam unitatem, non solum specificam, sed etiam qi pticam et moralem, quam indicat naturale præceptum mutui amoris et miserioris quod ad omnes extenditur, etiam extraneos et cujuscunque nationis. Quapropter, licet unaquaque civitas perfecta, respublica, aut regnum, sit in se communitas pertesta et suis membris constans, nihilominus quælibet illarum etiam membrum aliquo modo hujus universi prout genus humanum spectat. Nunquam enim illæ comman.tates adeo sunt sibi sufficientes sigillatim, quin indigeant aliquo mutuo juvamine, et socrate, ac communicatione, interdum ad melius esse majoremque utilitatem, interdum vero et ob moralem necessitatem. Hâc ergo ratione indigent aliquo jure, quo di sgantur et recte ordinentur in hoc genere communicationis et societatis. Et quamvis magnâ ex parte hoc fiat per rationem naturalem, non tamen sufficienter et immediate quoad omnia: ideoque potuerunt usu earumdem gentium introduci." Saurez, de Legibus et Deo Legislatore, lib. ii. cap. xix. n. g. people of Europe or to those of European origin. This distinction between the European law of nations and that of the other races of mankind has long been remarked by the publicists. Grotius states that the jus gentium acquires its obligatory force from the positive consent of all nations, or at least of several. "I say of several, for except the natural law, which is also called the jus gentium, there is no other law which is common to all nations. It often happens, too, that what is the law of nations in one part of the world is not so in another, as we shall show in the proper place." (a) So also Bynkershoek, in the passage before cited, says that "the law of nations is that which is observed, in accordance with the light of reason, between nations, if not among all, at least certainly among the greater part, and those the most civilized." (b) Leibnitz speaks of the voluntary law as established by the tacit consent of nations. "Not," says he, "that it is necessarily the law of all nations and of all times, since the Europeans and the Indians frequently differ from each other concerning the ideas which they have formed of international law, and even among us it may be changed by the lapse of time, of which there are numerous examples. The basis of international law is natural law, which has been modified according to times and local circumstances." (c) Montesquieu, in his Esprit des Lois, says, that 66 every nation has a law of nations-even the Iroquois, who eat their prisoners, have one. They send and receive ambassadors; they know the laws of war and peace; the evil is, that their law of nations is not founded upon true principles." (d) There is then, according to these writers, no universal law of nations, such as Cicero describes in his treatise De Republica, binding upon the whole human race-which all mankind in all ages and countries, ancient and modern, savage and civilized, Christian and Pagan, have recognized in theory or in practice, have professed to obey, or have in fact obeyed. Jus and § 12. An eminent French writer on the science of Lex. which we propose to treat, has questioned the propriety of using the term droit des gens (law of nations) as applicable to those rules of conduct which obtain between independent societies (a) De Jur. Bel. ac Pac. lib. i. cap. 1, § xiv. 4. (b) Bynkershoek, De Foro Legatorum. Vid. supra. |