CHAPTER III.

OF THE CONVENTIONAL LAW OF NATIONS.

Conventional THE positive law of nations, as has been already menpositive law of tioned, is dependent on custom and on convention.

part of the

nations.

Treaties, being merely contracts between states, obviously cannot oblige, by their provisions, states which are not parties to such contracts. Nor can any number of treaties, stipulating a particular course of action, although existing for any length of time, oblige, as treaties, any but the contracting parties. But treaties continually engaging the same course of action, or rather articles of the same import continually inserted in treaties, are with reason cited as evidence of the customary law of nations. When, for instance, we find that, excepting only one or two instances, in all treaties among all European nations where the right of searching merchantmen is mentioned, it is provided that the commissioned cruiser is to send a boat for this purpose with not more than three or four men besides the rowers, herself remaining at the distance of cannon range, it is allowable to cite these treaties as indicating the general consent and constant usage of nations with regard to this practice. But it can never be admitted, that any balance should be struck between the number of treaties on one side of any practice and on the other, as has been attempted by some writers. Where a variety of treaties exist, stipulating contradictory provisions, all that can be proved from them is, not that a certain course is customary from the balance of the number of treaties on one side, but that such contradiction shews that there is no settled usage, or that if there

were a settled usage it has been the subject of frequent exception. From incidental circumstances it is often manifest whether treaties are merely declaratory of an established usage, or whether they are stipulating for unusual privileges. As far as number goes, perhaps, there have not been so many treaties on any single subject, in recent times, as on that of extradition, or delivering up criminals who have fled from the country under whose jurisdiction the crime was committed, to the territory of another state, whose tribunals, from one cause or another, will take no cognizance of the offence. But these treaties, so far from proving any usage of extradition, prove quite the reverse; making it clear, from their constant recurrence, that the purposes of municipal justice require a practice which cannot be claimed unless under express stipulation. The same thing is evident from the vast number of treaties which regard the droit d'aubaine, and which, in stipulating for an exemption from this obnoxious practice, shew, numerous as they are, that they are merely a long series of exceptions to a usage which was always in force when not the subject of special contract. Observations will be found in another place on the construction of treaties, and also on their duration, and other circumstances affecting them: treaties are only mentioned in the present instance as the conventional part of the positive law of nations, and are noticed because of their effect upon the law of nations as an entire system.*

[* See p. 122.]

as a whole

system.

CHAPTER IV.

OF THE LAW OF NATIONS AS DERIVED FROM THE

PRECEDING SOURCES.

Law of nations THE law of nations, being thus dependent on the law of nature, on custom, and on convention, bears some resemblance to the divisions of our own law, as comprised under the heads of equity, common law and statute law. It cannot boast the exactness of our municipal code, which, notwithstanding its proverbial uncertainty, is, owing to the number of cases decided, better ascertained than, considering the comparatively rare discussion of questions regarding the law of nations, is in the latter case possible. Nor has it the advantage of a fixed tribunal to decide in doubtful cases; neither has it the advantage of the "sanction" which the authority of the sovereign gives to municipal law. Nor can it be denied that history records numerous instances, even in modern times, of law being disregarded, and of clear rights being flagrantly violated. But notwithstanding its deficiencies, and its occasional neglect, the law of nations, as derived from natural law, from custom, and from convention, is, as a fact, acknowledged as binding by the States of Europe and of North America.* When differences occur between nations, reason

[* The exact extent at the present moment of the operation of the Law of Nations is a matter of some difficulty to settle. In their intercourse with distant and weak States there has been too much disposition among the States of Europe to avail themselves of that law when it has been in their favour, and to repudiate its obligations when it would have been against them. Thus the independence of China as a sovereign State has been persistently encroached upon by England, while the duties of the Chinese government, in respect of the protection of

is brought to bear to discover the right of the case, and the standard writers are appealed to, and usage is shewn from historical accounts of the previous practice of states; and the rule of conduct, as deduced from these sources, is acknowledged as the law of nations. The occasional infringement of this law is no argument against the fact of its existence and acknowledgment : it is a contingency to which it is liable from its very nature, being a rule to be observed by those who have no common superior to enforce its constant observance. As a fact, the law of nations is constantly appealed to; and has been usually obeyed: it has been recognised as a body of law for the guidance of nations in a great variety of state papers; it has been acknowledged as binding by an express act of the legislature of the United States; and is referred to as a known system in a treaty of the Turks. It has even been recognised at the very moment of its violation; and the sovereigns who have broken through its restraints have invariably acknowledged its existence, by the manner in which they have attempted to make their violence appear consistent with its institutions.

[The following passage on the actual cogency of the law of nations is extracted from a lecture of the

English citizens, and especially of diplomatic agents, have been stringently enforced. Japan has been more liberally treated, owing to the competition of the United States. Both China and Japan, in their relations with each other and with other States, hold themselves amenable to the principles of the Law of Nations as understood in Europe and in the United States. Turkey was formally brought within the purview of the Law of Nations by the 7th Article of the Treaty of Paris of 1856, by which the Emperors of the French and of Austria, the Queen of Great Britain and Ireland, the King of Prussia, the Emperor of Russia, and the King of Sardinia, declare the Sublime Porte admitted "à participer aux avantages du droit public et du concert Européens.”—ED.]

[Editor delivered at the Inns of Court (Lectures on International Law, Stevens, 1874).

"All this vacillating uncertainty, taken by itself, gives the most incorrect picture of the practical cogency of the great mass of the rules which compose the International Law of Europe. No war takes place in which the rules of International Law, in spite of all the accidental infractions of them, have not the most enormous influence over every step in the action of either Belligerent. The considerate treatment of prisoners; the respect for truces; the friendly attitude observed towards non-combatants and their property; and, above all, the validity of the broader principles which determine the rights and duties of Neutral States; are all facts equally unquestionable and momentous, which only escape attention from the rareness with which they generate disputes. Nor is the reality of International Law less conspicuous in times of peace. Not only do its rules determine the modes of incessant intercourse between the Governments of States, and even fix the ceremonious usages which mark the relative dignity of every ambassador or other State representative; but no sooner does a State, however lawless and rapacious, descry an opportunity for war upon its neighbours, than it appeals to the rules of International Law and bases its claim upon an alleged infraction of them. It might be sufficient, in final refutation of the notion that International Law is a fiction, to cite the important English statutes which have recently been passed in order to enforce upon English citizens the duty of co-operation with the State in complying with international obligations, and the records of recent litigation in the highest English courts arising solely out of disputed questions of International Law."]